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Interesting times…

by Robin Wilton  |  January 25, 2012  |  Comments Off on Interesting times…

Well, it may have been a quiet week in Lake Wobegon, but in the privacy and policy domain it has been quite the opposite. Wikipedia and a number of other sites went dark in protest against SOPA/PIPA; the Feds took down the MegaUpload file-sharing site, alleging violation of piracy laws; Anonymous retaliated by taking down a slew of SOPA supporters; and the European Commission has just announced its new, pan-European Data Protection Regulation (link to PDF version).

But let’s not talk about that… let’s talk about the 4th Amendment. For those on the right hand side of the Atlantic, the 4th Amendment is the part of the US Constitution which establishes the individual’s “right to be secure from all unreasonable searches, and seizures of his person, his houses, his papers, and all his possessions”. Like any constitutional law, it has been subject to a great deal of interpretation in the 221 years since it was ratified, not least as the law tries to keep pace with new ways of “searching” and “seizing”.

The 4th Amendment is often considered to be the closest thing US citizens have to a privacy right, and it generally establishes the need for any violation of that right to be backed up by a judicial warrant. Of the current Supreme Court, Justice¬† Antonin Scalia is the one who most commonly dissents from this view, holding that the “reasonableness” test can be satisfied without a warrant. However, in a judgement this week Justice Scalia joined with his peers in finding unanimously in favour of the need for a warrant.

The case at issue was US vs. Jones, and the Supreme Court ruled that US law enforcement authorities had violated Mr Jones’ 4th Amendment rights by fixing a GPS tracker to his wife’s car, and using it to track his movements. Mr Jones was, at that time, suspected of being involved in drug dealing.

The judges ruled that, in attaching the device to Jones’ car, the police had physically intruded into “a constitutionally protected area”, and that this ran counter to a legitimate expectation of privacy in that respect. Justice Sotomayor and Justice Alito both drew attention to the issues of keeping 4th Amendment protections in step with rapid technological change – not least, the fact that so many of our personal actions are tracked by commercial websites and hand-held devices.

The court held back from ruling on what other means of surveillance might violate the 4th Amendment rights, though it is clearly something they thought about in their review of prior case law. As a result, the two aspects I mentioned above (physical intrusion, and expectation of privacy) are very likely to be the basis of future decisions, if it should come to questions of whether, say, traffic camera data can be used to track a suspected criminal. There would be a strong argument that the installation and operation of traffic cameras does not involve intrusion into a constitutionally protected area, and that it does not infringe on an expectation of privacy.

Whether that will extend into the online domain of web tracking remains to be seen.

So much for the 4th Amendment… I’ll see your 4th and raise you one: in a quite separate case, a judge in Denver ruled that an individual could not claim 5th Amendment protection from a law enforcement request to decrypt data on her laptop. (The 5th Amendment is the one establishing, among other things, an individual’s right to refuse to give information which might incriminate them).

In this instance, the suspect declined to decrypt the contents of her hard drive on the grounds that it might incriminate her. The judge held that, even if the police did not know the specific contents of a specific document, the fact of its existence was a foregone conclusion, and that therefore the 5th Amendment did not apply.

I have to admit, I don’t quite follow that chain of reasoning, but like I say,the law is having a job keeping pace with technological change.¬† It has been an interesting week, then… and I dont see the pace of change slowing down any time soon.

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Robin Wilton
Research Director
26 years IT industry

Robin Wilton is a research director with a particular interest in digital identity and privacy (and their relationship to public policy), access control and single sign-on, and the productive use of public key infrastructures. Read Full Bio

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