Judge Alex Kozinski on Third-Party Privacy: "Kiss It Goodbye"
In Reason Magazine, the chief judge of the 9th Circuit Court of Appeals explains how the 4th Amendment is under attack in the age of technology and government overreach
Matt Welch June 10, 2013
In a case in 1929, the police tapped somebody's line. So the guy was in his house and talked to somebody on the other end. The police were outside on the telephone pole where they tapped the line and listened to the conversation. And the claim was, "Look, this is an invasion of privacy. It was an invasion of my protected sphere of what I expect to be held secure from the government." The Supreme Court said "No. Since the telephone pole doesn't belong to the homeowner, it belongs to the telephone company. The wires don't belong to anybody. There's no trespass. No Fourth Amendment violation."
That was in place for about 40 years, and finally in 1967 the Supreme Court in a case by the name of Katz came up with the idea that they'd finally had enough. And what happened in Katz was: Katz was making a bet or having some sort of an illegal conversation involving gambling in a phone booth and the police knew he was going to be there because he did this every day, so they had a microphone on the top of the phone booth and they managed to hear his half of the conversation. Based on that, they convicted him of crime. He said: "Violation of the Fourth Amendment. They didn't have a warrant; they didn't have probable cause. "The government answered, "But we didn't invade the space. He was in a phone booth and outside." The Supreme Court said, "We're going to jettison the idea of trespass and what we're going to have is a doctrine based on a 'reasonable expectation of privacy.'"
So, what the Fourth Amendment now protects, in addition to places, it protects people's reasonable expectation of privacy. Which is good—if you have a reasonable expectation of privacy.
In a world where people use phone booths to have telephone conversations, the Supreme Court could say that what you say on the telephone is private. But what happens in a world where people shout in their cell phones in the supermarket and in the airport? You can hear anybody's conversation just like you could have heard Katz's conversation with the door of the booth open. The Supreme Court could say—and I don't think we're going there, I'm just trying to illustrate the problem for you—"Well, phone conversations are really no longer considered private. We have decided to no longer consider phone conversations private because look at how people treat them. They don't treat them as private."
So you've got that whole problem. You've got the problem of how you can now no longer communicate without passing a whole bunch of information through a bunch of third parties. Internet service providers, cable carriers, and so on.
And under another line of cases, the government can obtain any information that you freely disclose to third parties. I'll give you an example. If you keep your money in your mattress at home, they can't touch it. They can't look at it without getting a warrant. But if you give it to a bank then you've disclosed it to a third party; it's no longer private and the government can obtain it without complying with the Fourth Amendment. It's a doctrine that has huge implications in the era of electronic communications, because basically we don't ever communicate with each other anymore, except maybe in the bedroom, that doesn't go through some sort of an electronic means. And this is a huge problem.
The Supreme Court Justice Sotomayor wrote about it in a case by the name of Jones. That was a case where they attached a GPS tracker to somebody's car. And the Supreme Court said that was a violation of the Fourth Amendment because they attached the GPS tracker to the car. Leaving it open to the question: "What if they can track it without having to attach anything to the car?" Incredibly difficult, incredibly complex question. It really will test who we are and what we think about individual privacy when the Supreme Court finally addresses the issues head-on.
From his denunciations of Wall Street greed to his critiques of the auto manufacturers, Obama and his team have done little to disguise their mistrust of big business -- except when it comes to one very large, very influential technology company.
In Google (GOOG, Fortune 500), the $22-billion-a-year online-advertising Goliath, Obama appears to have found a corporate kindred spirit. Google executives, led by CEO Eric Schmidt and co-founders Sergey Brin and Larry Page, are scary smart and supremely self-confident (much like the President himself), and despite their company's growing power, they depict themselves as advocates for consumers.
Google managers and employees were some of the strongest supporters of candidate Obama, donating around $803,000 to his presidential campaign, according to the website OpenSecrets.org. Among corporate employees, only staffers at Goldman Sachs (GS, Fortune 500) and Microsoft (MSFT, Fortune 500) gave more.
CEO Schmidt actively stumped for the candidate and served as an informal economic adviser during the campaign, and after Obama was elected, Schmidt and other Google executives forked over $25,000 apiece to help pay for the inaugural celebration.
Because the company and administration are so like-minded, it should come as no surprise that Google executives soon found themselves assuming roles in the Obama administration.
Nevertheless, Google's newfound access in Washington is striking for two reasons: Obama and his team pride themselves on maintaining a distance from corporations -- before taking office the President pledged to close the "revolving door" of industry executives who go on to regulate their former corporate peers.
The United States' National Security Agency (NSA) maintains a database containing hundreds of billions of records of telephone calls made by U.S. citizens from the four largest telephone carriers in the United States: AT&T, SBC, BellSouth (all three now called AT&T), and Verizon.
The existence of this database and the NSA program that compiled it was unknown to the general public until USA Today broke the story on May 10, 2006. It is estimated that the database contains over 1.9 trillion call-detail records. According to Bloomberg News, the effort began approximately seven months before the September 11, 2001 attacks. As of June 2013, the database is codenamed MARINA and stores the metadata for at least five years. A similar database to MARINA exists for email and its code name is Pinwale.
The records include detailed call information (caller, receiver, date/time of call, length of call, etc.) for use in traffic analysis and social network analysis, but do not include audio information or transcripts of the content of the phone calls.
The database's existence has prompted fierce objections. It is often viewed as an illegal warrantless search and a violation of the pen register provisions of the Foreign Intelligence Surveillance Act and (in some cases) the Fourth Amendment of the United States Constitution.
Now, comes word that Google and other search engine providers have opened their vast stores of Data-Mining Data to the NSA. In fact, the agency has just opened the world's largest data collection and storage center in the isolated town of Bluffdale, Utah. If you had any expectation of privacy, kiss it goodbye.
Even if you have nothing to hide, do you like being treated as if you do have something to hide? Think of it, the Government will have access to any intimate conversation, email, or conversation you have ever had with others. They will know where you have went on vacation, where you shop, and everything else about you! All this because some terrorists from a foreign land attacked us on our own soil. Now we are all treated as possible terrorists.