Instead of being sensible and going to sleep I'm going to write about another in the Future of the C onstitution series. This one is Is the Fourth Amendment Relevant in a Technological Age? by Christopher Slobogin.
The essay covers the current mess surrounding the interpretation by the American courts of the 4th Amendment to the American Constitution which says:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
The problems here are multiple stemming from obvious "wiggle-words" such as unreasonable but also in straightforward words such as house.
There is also the issue of probably cause – i.e. that the police must have a 50% of higher probability that potentially intrusive surveillance will lead to uncovering a crime. The huge increase in the number of CCTV cameras covering public areas in the US, UK and elsewhere is one obvious area of contention for this.
While Katz vs United States concluded that the police bugging phone boxes to entrap people was illegal as "the Amendment protects people, not places" increasing use of Deep Packet Inspection tools on the internet make a mockery of that ruling.
In United States vs Knotts the court ruled that it was okay to attach a GPS tracker to a suspect's car without a warrant as "[a] person travelling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.”
Further caselaw states that even a person's garden behind a high fence is fully open to police surveillance as "“[a]ny member of the public flying in navigable airspace could have seen what the police saw."
Over 8,000,000 requests have been made by American police for tracking of mobile phone locations by mobile network operators – often handing over weeks or months of location data. It is unknown how many of these cases lead to a conviction.
United States vs Kyllo states that the police could not use a thermal imaging camera to see what is happening inside a house – bizarrely because such as a device is "not in general public use" (rather than base their decision on a ethical footing). However, they can still be used in an non-home location such as a person's back yard, work or any public area.
Devices "in general public use" such as zoom lenses, night-vision equipment, boom mikes, etc are fair game to look inside people's homes. It's assumed that more technological devices will become "common" over time.
Moving to state acquisition of data United States vs Miller (1976) says that an individual “takes the risk, in revealing his affairs to another, that the information will be conveyed by that person to the government . . . even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed.” This text is used in its widest interpretation when "to another" can make a corporation – in Miller this was a Bank. This means that there is no private speech between Americans and American companies unless covered by separate legislation (doctors, lawyers, etc). From Smith vs Maryland this was extended to every number any subscriber had dialed using a named phone company.
The issue with the above, obviously, is whether this can be interpreted, for example, as carte blanch for the state to collect all the phone numbers anyone ever dials "just in case" they need to use them later in a criminal investigation. Various forms of state information aggregation have been created – most infamously Total Information Awareness (with the creepiest logo ever) which was defunded in 2003 but has continued under different, less public, titles ever since.
This is all outside repeated statements by the Supreme Court that any operation focused on terrorism, such as suspicionless searched on NYC public transport, fall outside the usual jurisdiction of the courts as “in those exceptional circumstances in which special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable.”
The paper continues in it's final 3rd by making recommendations on ways to re-balance the status quo so that there is a more even keel between state's acquisition of information and individual rights. I encourage interested parties to read it.