Congress must act to protect data privacy before courts make surveillance even easier

Op-ed by Ashley Baker, director of public policy at the Committee for Justice, published in The Hill.

The Fourth Amendment was established in a time when privacy expectations could be articulated through a simple maxim that “every man’s home is his castle.” In the 21st century, however, our most private information is often guarded not by walls or with a key, but by the companies — Microsoft, Verizon, and the like — that provide us with access to the data cloud. In a perfect world, the technologies of today would be met with the same principles that were laid out in the Fourth Amendment by our founders. Unfortunately, that is easier said than done. Technology has added lots of complications, and we are left trying to figure out what a reasonable search is in the age of the data cloud. Much of the doctrine of the Fourth Amendment is based on definitions that are ill-equipped for dealing with challenges in the era of cloud computing. For instance, do emails, location information, and other data and documents stored in the cloud fall within the Fourth Amendment’s protection of “The right of the people to be secure in their persons, houses, papers, and effects”?

Moreover, lack of notice to the person whose property is being searched has become a big problem in the digital era. Traditional searches of one's home or car are, as a practical matter, difficult to keep secret from the property’s owner. In contrast, absent legal protections, it is easy for the government to search electronic data that is held by a third party without the owner of the data ever finding out about it, assuming the government has the cooperation of the third party.

That is just one of several ways in which the third-party doctrine, which holds that people who voluntarily convey information to a third-party such as a bank or a telephone company have no reasonable expectation of privacy in the information conveyed, results in a gaping hole in Fourth Amendment protections in this new age. When applied to the data cloud, this relatively narrow third-party exception granted to law enforcement becomes a broad license for the government to monitor virtually all the data we transmit in our day-to-day lives. One would have to virtually opt out of our high-tech society to evade this license. That should not be a required trade-off for enjoying the protections of the Fourth Amendment, especially when the government has lawful alternatives for achieving its law enforcement needs.

The Supreme Court is set to weigh in on the fate of the third-party doctrine this fall when it hears