From crafting policy to tactical considerations, PoliceOne’s 2017 Guide to Emerging Technologies features expert analysis on soundwave technology, facial recognition software, handheld narcotics analyzers, the future of traffic stops, how constitutional law impacts the collection of data for investigations, and how advancements in biometric technologies will help improve correctional facilities.
Q: What do U.S. Supreme Court justices Louis Brandeis, Frank Murphy and John Harlan have in common, other than each at one time occupied a seat on the nation’s highest court?
A: Each of them predicted the future impact of technology on Fourth Amendment protections during his time on the Court:
• Justice Brandeis provided his prescient view in a dissenting opinion to Olmstead v. United States (1928) when he wrote: “The progress of science in furnishing the government with means of espionage is not likely to stop with wiretapping.”
• Fourteen years later Justice Murphy, dissenting in Goldman v. United States (1942), would record his concerns over the ability of science to develop means of searching person and property without physical trespass.
• Justice Harlan’s well-known concurrence in Katz v. United States (1967), wherein he proclaimed that the Fourth Amendment protects people not places, provided a warning against “bad physics as well as bad law” seeking to limit Fourth Amendment protection from electronic invasion.
Each justice was astute enough to recognize the progress of science and the limitless resources that one day would be available to law enforcement and the government for gathering information about individuals.
However, despite the prognostications of these men, the Supreme Court still wrestles with dated precedents largely concerned with physical trespass and reasonable expectations of privacy for determining whether an unconstitutional search has occurred. For modern law enforcement entrenched in major investigations, these futuristic musings of long-deceased jurists are no longer academic supposition – they have become present reality.
The FBI’s dispute with Apple
The national dialogue concerning individual privacy rights and government access to personal data and technological devices gained prominence after the San Bernardino shooting in December 2015. The FBI investigation led to a legal and media war with Apple over the decryption of the dead suspects’ phones. The FBI obtained a court order under the All Writs Act of 1789 compelling Apple to assist them in the decryption. Apple responded with a motion in opposition to the court order.
Part of the government’s legal argument rested on a 1977 Supreme Court case, United States v. New York Telephone Co., in which a private third party was compelled to provide government investigators with the installation and operation of pen registers on two suspects’ phones. The narrow Supreme Court majority decision (5-4) cited the All Writs Act as providing courts with the power to “issue all writs necessary or appropriate in aid of their respective jurisdiction and agreeable to the usages and principles of law.”
Public opinion polls on the validity of the government’s position versus Apple’s in the decryption controversy showed a near 50/50 split, with slight support for the government’s position. The legal battle between the FBI and Apple over the decryption of the San Bernardino shooters’ iPhones abruptly ended when the FBI withdrew its legal filings, apparently after obtaining access to the data through alternate means.
The decryption controversy remained, and subsequent cases across the country dealt with similar law enforcement investigative requests to Apple and other technology companies for access to stored data. As the national dialogue continues, as well as the debate over privacy rights versus government access to data ostensibly released to a third-party provider, we are finding an increasing bounty of technological resources to aid in police investigations.
Widespread use of technology
As a society we are tethered to communication and monitoring technology, which has become more fully integrated into everyday life. A recent Rand Corp. report, “Future-Proofing Justice: Building a Research Agenda to Address the Effects of Technological Change on Constitutional Rights” offers the following observation in its introduction:
“As technologies become more integrated into people physically – from implanted medical devices that record and transmit data to human-augmenting technologies surgically implanted to provide capabilities we lack on our own – the line between a technology and a person will continue to blur.”
My immediate reflection upon reading this sentence was to consider one of my favorite television shows as a pre-teen (I’m dating myself here), “The Six Million Dollar Man,” and how the fantasy of television in the 1970s has become millennial reality. The pretend technology used to save the fictional Col. Steve Austin after a horrific plane crash is now being used to save the lives of our soldiers and restore the use of missing limbs. Even crime fighter Dick Tracy’s two-way radio wristwatch of 1940s comic strip fame has been realized in modern smartwatches.
Yet, modern legal arguments tackling these rapidly evolving technologies are still slogging through statutory enactments from the Judiciary Act of 1789, as evidenced by the present government use of the All Writs Act and decades-old case law.
The Rand report focuses on the rights of individuals in the 21st-century criminal justice system as the system itself becomes more technologically integrated. Researchers and panelists, including professionals from law enforcement, the courts and corrections, sought to develop best practices and training programs to confront potential threats to individual legal protections stemming from technological innovations within the criminal justice system.
The potential effect upon individual rights was as varied as the technology implemented. For instance, the virtual presence of a defendant in court, while convenient, might have a limiting effect upon the full exercise of Sixth Amendment rights, while data gathering might impact Fourth Amendment privacy rights.
An interesting aspect of the report defines specific technologies by function and notes the extent of our individual dependence on technology, which extends beyond our probable perceptions. From body-integrated technologies (fitness trackers and smartwatches) to carried devices (mobile phones and tablets) to home-integrated technologies (like Amazon Echo) and vehicle-integrated technologies (navigation systems), there is a limitless cache of personal information available that belies any claim to privacy.
Technology and privacy
Government access to personal information is a core concern of substantive and procedural due process protection. Fourth Amendment rights are not any less impacted by these new technologies; however, standard legal understandings of what information will now be considered private versus public is undergoing new consideration.
In their seminal work, “The Right to Privacy,” published in the Harvard Law Review in 1890, law school classmates and eventual law partners Samuel D. Warren and Louis D. Brandeis wrote:
“That the individual shall have the full protection in person and property is a principle as old as the common law; but it has been necessary from time to time to define anew the exact nature and extent of such protection.”
At no time have these words been truer than now.
The Supreme Court has made recent steps in clarifying privacy rights with its 2014 decision in Riley v. California by declaring that a smartphone is not subject to a search incident to arrest since it is more akin to a personal computer, thereby requiring a search warrant. But there remains a wide chasm between traditional Fourth Amendment understandings regarding privacy and today’s available technology.
One of these chasms involves the third-party doctrine, a legal rule declaring that any information voluntarily turned over to a third party loses its privacy protection under the Fourth Amendment. In such a circumstance, the more stringent Fourth Amendment standards of probable cause and issuance of a warrant are not required prior to the government obtaining access to the information.
According to the 1979 Supreme Court case Smith v. Maryland, the government’s capture of dialed telephone numbers by a pen register was not a search. Relying on the two-part Katz v. United States privacy analysis: 1. Is there an actual, subjective expectation of privacy, and 2. Is that expectation objectively reasonable and one society is willing to recognize? The Supreme Court said there was no privacy expectation in the incoming or outgoing numbers belonging to a telephone service subscriber. Furthermore, even if the subscriber did exhibit a subjective expectation of privacy, it was not reasonable.
The third-party doctrine would seem to foreclose any discussion regarding search warrants for the information present-day digital service subscribers willingly provide to service providers. However, the nature of information now being provided to service providers is beyond the sterile information of dialed and incoming telephone numbers at the center of Smith v. Maryland.
It is one thing to acknowledge that there is no expectation of privacy for dialed-in and dialed-out telephone numbers, but content is quite a different matter. Law enforcement has adapted readily to the changing technological landscape, even if case law and statutory law have been slower to respond.
The fail-safe approach of applying for a search warrant has been law enforcement’s soundest means of ensuring Fourth Amendment compliance and maintaining the integrity of an investigation, but, as the Rand report indicates, there are still many potential constitutional issues facing the criminal justice system as technology is increasingly integrated. This puts the courts at the center of the debate as these constitutional questions are put to the test within state and federal courtrooms around the country.
Fourth Amendment protections and the digital age
An important chapter in this ongoing discussion of Fourth Amendment protections and digital age privacy rights may be written by the Supreme Court this year if the court grants certiorari (meaning it agrees to review the lower court’s decision) in United States v. Graham, a case out of the federal Fourth Circuit Court of Appeals. The Fourth Circuit, in its 2016 full panel decision, held that the government can obtain historical cell-site location information, aka CSLI, without a warrant under the third-party doctrine.
The cellular data allowed Maryland police to link suspects to a string of robberies. A Maryland federal district court had previously allowed the use of CSLI under the third-party doctrine, as it was considered information voluntarily surrendered to the telephone company. A Fourth Circuit Court of Appeals panel reversed this, concluding that there was an expectation of privacy in the information and a warrant was required. The full panel’s reversal of the 2-1 panel decision reversing the district court decision resulted in a writ of certiorari to the Supreme Court in 2016.
If the Supreme Court grants certiorari, the resulting decision, while likely to be narrowly circumscribed to the facts of this case, should give a clear indication of the sustainability of the third-party doctrine. A decision will also likely presage the justices’ views on the extent of Fourth Amendment protections in technologies dependent on a user’s surrender of information and data to third-party providers.
In Knotts v. United States (1983), Justice William Rehnquist wrote about “dragnet-type law enforcement practices” and said that if such investigative abilities came to fruition, “there will be time enough then to determine whether different constitutional principles may be applicable.” The historical CSLI at the heart of the Graham case and other similar data able to be gathered to provide a comprehensive profile of an individual’s daily activities may be the sort of “dragnet-type law enforcement” Rehnquist envisioned. Or, as suggested by Justice Sonia Sotomayor in her United States v. Jones (2012) concurrence, the third-party doctrine may be simply “ill-suited to the digital age.”
Then again, the third-party doctrine may find support, as it did in the Fourth Circuit’s full panel decision. Whatever the outcome, it is clear that technology-related challenges within the criminal justice system continue to evolve.
While technology has been an asset in law enforcement investigations, vigilance is required to ensure preservation and admissibility of the evidence obtained. Future cases and legislation will more clearly develop the rights and responsibilities involved. In the interim, law enforcement must continue to adapt to the ever-changing legal landscape.
