United States: Has Katz Become Quaint? Use Of Big Data To Outflank The Fourth Amendment

Last Updated: September 23 2013
Article by Jeffrey Vagle

This article was prepared for Future of Privacy Forum and the Stanford Center for "Internet & Society's 'Big Data and Privacy: Making Ends Meet'" workshop.

Introduction

On December 14, 2010, a federal court, upon a government motion, entered an order pursuant to the Stored Communications Act (SCA) requiring Twitter to turn over to the government subscriber information concerning the accounts of three Twitter users. The order demanded only "non-content" data: names, addresses, and all records of user activity, including dates, times, and IP address data for all subscriber activity since November 1, 2009.

The subscribers filed a motion to vacate the order on grounds that it was insufficient under the SCA and violated both the First and Fourth Amendments. The motion was denied by the magistrate judge.1 The subscribers then filed objections to the magistrate judge's ruling.2 The district judge denied the subscribers' objections, agreeing with the magistrate judge that the subscribers lacked standing to challenge the SCA-based order on non-Constitutional grounds. The court also rejected the subscribers' Fourth Amendment challenge, stating that "any privacy concerns were the result of private action, not government action," and thus the "mere recording of . . . information by Twitter and subsequent access by the government cannot by itself violate the Fourth Amendment."3

The problems illustrated by this case are twofold. First, in the age of big data, the collection and analysis of "non-content" data can yield far more information about someone than was thought when the SCA was first drafted.4 Properly applied, big data analytics can make record data more illuminating to the analyst than content, heightening concerns over reduced SCA protections for non-content data. Second, since this data is collected by third party providers, the government can obtain this data without dealing with Fourth Amendment protections,5 possibly bypassing the courts altogether.6 Furthermore, the government's focus on national security since 2001 has resulted in an increase in requests for such data, some of which remain unexamined due to government claims of state secrecy.7 This essay argues that the nexus of ubiquitous computing and big data analytics has rendered existing standards of Fourth Amendment protection inadequate, and calls for a reexamination of these doctrines based on today's technologies.

Mosaic Theory and the Age of Big Data

In recent years, data storage capacities have increased by orders of magnitude, while associated costs have plummeted. Processing speeds have increased to the point that most people carry smartphones that are far more capable than the computers that sat on their desks a few years ago. These factors have combined to enable real time analysis of massive quantities of data, spurring research advances in fields as diverse as atmospheric science, genomics, logistics, and disease prevention.

These capabilities have not gone unnoticed by governments, which have employed big data analytics to reach previously unheard of dimensions of intelligence analysis.8 These techniques have spilled over into domestic law enforcement, yielding some positive results9 while at the same time posing new challenges to Fourth Amendment doctrine. And we are the ones supplying the data.

Most Americans own cell phones. We carry them everywhere, and are generally never more than a few feet from one at any time. We use them to send emails and text messages, post messages on Facebook or Twitter, take photos and share them with friends (or the world), and sometimes even to make calls. They are always on, and always on us. Most cell phone users understand that, in order for a cell phone to work, it must be in constant communication with the provider network. The information that is passed back and forth between the phone and the network includes subscriber and location information, and any content that you send or receive. All of this information is collected and stored by the service provider, often without our knowledge.

In fact, providers of all kinds of services make it their practice to collect every bit of data we generate—explicitly or implicitly—and store it for some amount of time.10 Various privacy laws exist at the state and federal level to prevent the collection of personally identifiable information (PII), but big data analytics obviates the need for personal information by leveraging the vast amounts of non-PII data we constantly provide.11

The Shrinking Distinction between 'Record' and 'Content' Data under the SCA

The SCA was enacted in 1986, and was intended to extend privacy protections to new forms of telecommunications and computer technology then just emerging, e.g., cell phones and email.12 The core of the SCA is 18 U.S.C. § 2703, which articulates procedures by which the government may obtain electronic communications and related information. Section 2703 distinguishes between "content" and (non-content) "records," giving greater protection to the content of a communication.

This distinction is based on Congress's original purpose in enacting the SCA. Because Fourth Amendment privacy protections leave gaps when it comes to information sent to—and stored by—third parties,13 the SCA was enacted to fill those gaps by providing additional statutory privacy rights against government access to information stored by service providers. It was reasoned that users may have a "reasonable expectation of privacy"14 in the substance of their stored communications (content), but would not enjoy the same expectation in non-content (record) information shared with their service provider.

Thus, if the government seeks access to non-content subscriber records under the SCA, their agents may get this information without a warrant, using either a subpoena or a "specific or articulable facts" order, and are not required to provide notice of this access to the subscriber.15 But, armed with the ability to perform real-time analytics over vast amounts of this data, the government can make non-content information more illuminating than content information, thus skirting the original intent of the SCA's content/non-content distinction.

Third-Party Doctrine

Under current doctrine, the Fourth Amendment does not prohibit the government from obtaining information revealed to a third party who then conveys that information to government authorities, even if the information was 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.16 This third-party doctrine has been the basis for courts holding that information "voluntarily disclosed" to service providers, including IP addresses, files shared on private peer-to-peer networks, and historical cell phone location records, does not have Fourth Amendment protection.17

But courts have begun to question the application of this doctrine as applied to current technologies and use patterns. This nascent recognition of the advent of ubiquitous computing, made possible through Internet-enabled laptops, tablets, and smart phones, and the resulting "voluntary disclosure" by millions of Americans of vast amounts of non-content information to third party service providers, has raised concerns that the aggregation and analysis of these enormous data sets may be more revealing than content information. For example, one court has observed that cell service providers "have records of the geographic location of almost every American at almost every time of the day and night," enabling "mass or wholesale electronic surveillance" by the government, and holding therefore that "an exception to the third-party-disclosure doctrine applies to cell-site-location records."18

Conclusion

As Judge Garaufis recently observed, "[i]n order to prevent the Fourth Amendment from losing force in the face of changing technology, Fourth Amendment doctrine has evolved . . . and must continue to do so."19 For most Americans, the use of "always on, always on us" technology has become an indispensable part of everyday life, forcing us to accept the fact that private service providers collect the data we constantly generate. Under existing Fourth Amendment doctrine, this non-content data is afforded few protections, even though it may be more revealing than content data. Courts should therefore recognize that our current Fourth Amendment protections must evolve to adapt to the age of big data analytics.

Footnotes

1 In re § 2703(d) Order, 787 F. Supp. 2d 430 (E.D. Va. 2011). In her decision, the magistrate judge reasoned that since the order demanded only "records" and not the "contents" of their electronic communications, the subscribers had no standing to challenge the compelled disclosure under the SCA. Further, she held that the subscribers had no First Amendment claim involving non-content information, and they had no legitimate Fourth Amendment expectation of privacy in this information.

2 In re Application of the United States, 830 F. Supp. 2d 114 (E.D. Va. 2011).

3 Id. at 132-33 (citing U.S. v. Jacobsen, 466 U.S. 109, 115-17) (1984)).

4 The statutory definition of "content" is "any information concerning the substance, purport, or meaning of that communication." 18 U.S.C. § 2711(1). The SCA provides greater protection to the "contents of electronic communications" than to their non-content "records." 18 U.S.C. § 2073(a)-(c).

5 Charlie Savage and Leslie Kaufman, "Phone Records of Journalists Seized by U.S.," NY TIMES, May 13, 2013. This instance also illustrates the important First Amendment issues at stake.

6 The government has solicited cooperation and assistance from multiple private companies under the auspices of national security. See generally David Kravets, "Court Upholds Google-NSA Relationship Secrecy," WIRED, May 11, 2012; Brandan Sasso, "Supreme Court Lets AT&T Immunity Stand in Surveillance Case," THE HILL, Oct. 9, 2012, available at http://thehill.com/blogs/hillicon-valley/technology/260951-supreme-court-lets-atat-immunity-stand-in-surveillance-case.

7 James Bamford, "The NSA Is Building the Country's Biggest Spy Center (Watch What You Say)," WIRED, Mar. 15, 2012.

8 Big data analytics is especially useful under the "mosaic theory" of intelligence gathering, which holds that small, disparate items of information, though individually of little or no use, can become meaningful when combined with other items of information by illuminating relationships between the data. Notably, the U.S. government has recognized that mosaic theory can work against them, as well, resulting in increased assertions of state secrecy in denying FOIA requests. See David E. Pozen, "The Mosaic Theory, National Security, and the Freedom of Information Act," 115 YALE L.J. 628 (2005).

9 See Frank Konkel, "Boston Probe's Big Data Use Hints at the Future," FCW, Apr. 26, 2013.

10 Private companies maintain differing data retention policies, which can be based on government regulation, data management best practices, or internal procedures.

11 Location data alone can make someone's life an open book. "GPS monitoring generates a precise, comprehensive record of a person's public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations. The Government can store such records and efficiently mine them for information years into the future. And because GPS monitoring is cheap in comparison to conventional surveillance techniques and, by design, proceeds surreptitiously, it evades the ordinary checks that constrain abusive law enforcement practices: 'limited police resources and community hostility.'" United States v. Jones, 132 S. Ct. 945, 955-956 (2012) (J. Sotomayor concurring) (internal citations omitted).

12 See generally Orin S. Kerr, "A User's Guide to the Stored Communications Act, and a Legislator's Guide to Amending It," 72 GEO. WASH. L. REV. 1208 (2004).

13 A key reason behind these gaps, third party doctrine, is discussed in more detail below.

14 The "reasonable expectation" Fourth Amendment test was first articulated in Katz v. United States, 289 U.S. 347, 360 (1967) (J. Harlan, concurring), and has recently been "added to" in Jones and Florida v. Jardines, 133 S. Ct. 1409 (2013).

15 18 U.S.C. § 2703(d); 18 U.S.C. § 2703(c)(3).

16 United States v. Miller, 425 U.S. 435, 443 (1976). See also Smith v. Maryland, 442 U.S. 735, 743-44 (1979).

17 See In re Application of the United States, 830 F. Supp. 2d at 135 (IP addresses); United States v. Brooks, 2012 U.S. Dist. LEXIS 178453, *6-*7 (E.D.N.Y. 2012) (private peer-to-peer networks); United States v. Graham, 846 F. Supp. 2d 384, 389 (D. Md. 2012) (historical cell site location records)

18 In re United States for an Order Authorizing the Release of Historical Cell-Site Info., 809 F. Supp. 2d 113 (E.D.N.Y. 2011). The full reasoning behind the court's decision is beyond the scope of this essay, but it is worth noting the court's closing observation that "the collection of cell-site-location records, without the protections of the Fourth Amendment, puts our country far closer to [Orwell's] Oceania than our Constitution permits." Id. at 127.

19 In re United States, 809 F. Supp. 2d at 126.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Jeffrey Vagle
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions