Last June, Alex Kozinski (chief judge of the 9th district court) wrote this blog piece lamenting the death of the Fourth Amendment. It was critical, yes. A public warning? Surely. That said, the Fourth Amendment is not actually dead, yet. But true to Kozinski’s argument, it is dying – a long and drawn out death by spoon technology.
As any fifth grader may recite, the fourth amendment assures that: “the right of the people […] against unreasonable searches and seizures, shall not be violated; and no Warrants shall issue but upon probable cause […]”. So where does technology come into the picture? Technology has transformed the practicality and scope of “search and seizure” for law enforcement, all the while weakening the citizenry’s defense of what is “unreasonable”. This one-two punch has effectively overhauled much of what Americans used to believe about privacy. We will first look at some new ways technology is helping the government “search”, as well as (more interestingly) the new ways technology is undermining one’s defense for a “reasonable expectation of privacy”. Then I offer some defensive technology to help you fight fire with fire!
Perhaps the most infamous new weapon in the government’s privacy arsenal are the backscatter x-ray full-body-scanners. These machines, which have been deployed to several airports around the US, produce high quality “naked” photos of a subject. Although the face and genitals are always blurred, advocacy groups like the ACLU have unsurprisingly risen up against this new practice as unreasonable and invasive. In a testament to modern citizen complacency, a Washington Post article from last November reported that only 32% of surveyed travelers verbally opposed the scanners, and even fewer went so far as to ‘opt-out’. To be fair, I myself I consented to such a scan without much of a second thought last winter break.
For further example, in 2007, the Bush Administration took the first steps towards allowing satellite surveillance to be used domestically. This military technology, with its ability to see high resolution through clouds and even buildings , is perhaps even more invasive than the “virtual strip searches” described above. The decision was reversed, in 2009, when strong protest by the ACLU resulted in the closure of the program. Nevertheless, the technology exists and history shows that the government is all to willing to use it.
As a final example, consider GPS tracking. Previously the stuff of Bond and Batman, ever since 2010 these trackers can be applied to private vehicles on private property – often without a warrant. It is worth noting that this ruling only holds precedent in the 9th (which is Kozinski’s own) circuit. This issue burst into the public spotlight in October of last year, when a twenty year old Arab-American student in California discovered a tracker on his car. Yasir Afifi took photos of the device and posted to the popular Reddit social news site where his post rose quickly to the front page. According to Wired magazine, the FBI followed up with Yasir Afifi within days to recover their “highly expensive” piece of equipment, but they offered little explanation.
Taken as a sample, these three technologies work well to highlight the growing power of big brother’s all-seeing eye. That said, what is ultimately more dangerous is technology’s ability to render us complacent and legally defenseless – which is really the core of Kozinski’s article.
It comes down to the Third Party Rule in fourth amendment considerations. That is, we only have a reasonable expectation to privacy over things we haven’t revealed to other people or in public. Well that doesn’t seem to be a problem; I mean, we’re not walking around broadcasting our lives to the public are we? SPOILER ALERT: yes, yes we are. Far beyond the easy examples of posting photos to Facebook, Twitter, or Instagram (bieber shout out!), consumers are sharing their personal information and implicitly voiding their rights to privacy every day through mundane, innocuous tasks.
Take for example, supermarket loyalty programs – the enemy of choice for Kozinski’s article. They seem innocent enough: sign a quick form, and get 40c off that planters unsalted six pack of heart-healthy peanuts. I speak from experience, it’s an easy sell. The problem, constitutionally speaking, is that I have now granted access of my purchase history to a third party, I can no longer reasonably expect that to be private. The government knows this, and uses it. And loyalty programs are just the beginning. Fast-trac cards for toll-booths keep electronic record of your whereabouts. Amazon, Zappos, and GoodGuyGuns.com have databases with your order histories. Heck, Google Latitude and the new iOS 5 let you ‘share’ your realtime, granular location 24 hours a day! As we give up more and more control of our information for increasing convenience of service, we further limit our own “reasonable expectation of privacy.”
Many of these services have limited contracts, detailing certain controls over who can access your information and under what circumstances. But the majority of these contracts are unapproachable to the average consumer, and yet to be critically examined in court. At the end of the day, you are still sharing private information with a third party entity. Benjamin Franklin once famously said that “Those who would give up essential liberty, to purchase a little temporary safety, deserve neither liberty nor safety.” I wonder what he would have to say about giving up liberty for not security, but convenience, and the chance to get 15% off your next purchase of Keebler Chips Deluxe.
Now, as so often is the case, the hope of humanity falls on Oregon. Ron Wyden, the democratic senator responsible for blocking the COICA bill we studied last week, has proposed new legislation regulating the exact contexts under which law enforcement may track your phone (and you) with GPS technology.
But even with new protective legislation, all the fourth amendment writing in the book can’t hold much against the “Border Search Exception”, as described in US vs. Arnold. As of early 2008, customs and border patrol agents need neither warrant nor probably cause to search travelers and their belongings at the crossing. While there was a temporary extension to limit the search of electronics, this has since been over ruled. Effectively, when entering the country your laptop is fair game for prying eyes.
THREAT LEVEL MIDNIGHT
So how do you protect yourself?
Sites like FlexYourRights.org do an excellent job instructing citizens on their fourth amendment rights, and how to protect themselves in instances like a routine traffic stop. But what about when you’re crossing the border? How do you protect your privacy when the government has legal access to search you, your belongings, and your data? I offer this quick introduction into protecting your privacy online and on the road:
1) Encrypt your data. Having a password is not enough – a well versed teenager can bypass Windows and OSX account security in minutes. Instead try PGP Desktop or True-Crypt (http://www.truecrypt.org). On my mac, I use Disk-Utility to make small encrypted images on my machine to store personal data.
2) Clear your browser cache and history, and securely wipe your deleted files. [windows] [mac].
3) Choose a strong password (yes, they are bypass-able, but a good first line of defense.) And shut down your computer before reaching customs. This way the RAM (temporary memory which may be holding your password unencrypted) has time to ‘clear’.
4) Consider a cloud encryption service like Google Docs, DropBox, or Carbonite, and upload all sensitive data to download later once you have crossed the border.
5) If you must keep your data on hand, further consider making a hidden encrypted partition on the drive, or otherwise storing the files on a small microSD card.
6) Finally, when you get to your destination, you may want to completely wipe your device if you did not retain control of it for the entire transition. Even the most basic of trojans can resist detection these days!
Less relevant to border crossings, but good practices to stay safe (and private) online:
1) Only use HTTPS (as oppose to HTTP) when accessing any site to which you log in. (bank, facebook, gmail… even iGoogle).
2) Avoid accessing your personal accounts or using your unprotected device on unencrypted or public networks
3) Limit the data Google, Facebook, Amazon, etc can collect about you.
4) Don’t let services like Twitter, Facebook, Instagram, and iPhoto record the geo-locations of your photos and travels.
5) Tightly manage your online publishing
In short: our increasing complacency as citizens to divulge personal details to third parties is weakening our defense of privacy. At the end of the day, the fourth ammendment needs YOU as much as you need the fourth amendment.
Yale Law Tech 