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So it looks like the problem is the third-party doctrine, which is described as "the 1970s-era Supreme Court case holding that there is no privacy interest in d

So it looks like the problem is the third-party doctrine, which is described as "the 1970s-era Supreme Court case holding that there is no privacy interest in data voluntarily given up to a third party like a cell phone provider." But people aren't voluntarily giving cellular providers this data, right? I mean, I never saw that prompt on my phone asking if Verizon could have access to my location. Of course the truth is Verizon/AT&T/others collect this data every time your phone hits a tower, but how many customers actually understand this? Is it outlined in the service agreement? I'll admit I've never actually read the whole thing before and just assumed it was the usual yadda yadda. But even if it did mention they collect location data, could I then opt-out or say I do not consent to have my location monitored and collected? Would that then protect me from data searches? Probably not... I maintain a large amount of Wi-Fi networks in various locations across the US. While we have the ability to monitor the signal strength of every device and use trilateration to obtain a location, we don't do this. But, if we did, does that mean anyone our wireless picked up "voluntarily" gave me this data, and then I would have to give it up to law enforcement at a moments notice? I'm getting really tired of seeing centuries old laws being cited in 2016's technology.

deleted 10y ago
[deleted]
rhizome 10y ago
The voluntary act is choosing to own a cell phone.
- bpchaps 10y ago
  Heh. I broke down after six months of not having one and settled on a flip phone. The amount of social and logistical requirements these days almost entirely necessitates a phone on you 24/7. It's frightening how much everyone relies on everyone having a phone, including companies. Looking at you, airbnb. It was voluntary to get rid of my cell phone, but it was hardly voluntary to go back.
  - coldtea 10y ago
    >The amount of social and logistical requirements these days almost entirely necessitates a phone on you 24/7. Only if you don't have "fuck you" money, one has to add.
- Broken_Hippo 10y ago
  Agreed with the previous poster. I've not given up a cell phone, but it is difficult to get by in the real world without it. Think about finding a job. Most folks expect to reach only you, on a cell phone. Many employers expect the same. Sure, it is a choice in a broad sense, but it isn't a realistic one if you want to take part in society.
  - rhizome 10y ago
    It may be difficult to live without one, but I'm pretty sure that legally, the agreement to let the provider do whatever with your data comes at the point of activation.
rayiner 10y ago
> I'm getting really tired of seeing centuries old laws being cited in 2016's technology. Third party doctrine was articulated after the cell phone was invented. The whole "expectation of privacy" articulation of the 4th amendment is younger than Lisp (dating to 1967).
appleflaxen 10y ago
My understanding of the argument is that the customer has no privacy interest if somebody they voluntarily gave information to (the phone company) voluntarily gives it to the police. Which is hard to argue with: if you tell me a secret, you lose the ability to control the information. (you have no "interest" in my willingness to share the secret). but IANAL, and am happy to be corrected
- mooreds 10y ago
  > third-party doctrine, the 1970s-era Supreme Court case holding that there is no privacy interest in data voluntarily given up to a third party like a cell phone provider. I don't think the issue is how the cell phone companies give the info to the government (voluntarily or involuntarily), but rather that because you, the consumer, "gave" your location info to the cell phone company "voluntarily", you have no privacy rights with respect to that info. Quotes because the definitions seem fuzzy to me (and to the defendant's lawyers, apparently). I am not a lawyer.
- stult 10y ago
  The Supreme Court established a test for determining when a government search triggering Fourth Amendment protections has occurred in Katz v. United States (1967). The majority ruled that a government intrusion into an area where a person has a reasonable expectation of privacy constitutes a search within the meaning of the Fourth Amendment and thus requires a warrant issued upon a showing of probable cause. Justice Harlan's concurrence in Katz, though not binding as it was not issued as the majority opinion, has provided the generally accepted two-prong test for determining when a reasonable expectation of privacy exists. Harlan defined an REP as when an individual has (1) displayed a subjective expectation of privacy (2) that society is prepared to recognize as reasonable. (1) and (2) are regularly referred to as the subjective and objective prongs respectively. For an REP to exist, an individual must meet both prongs. To meet the subjective prong, the individual must make an effort to withdraw their activities from public view. If I close the curtains on my front windows, I have displayed a subjective intent to conceal whatever occurs behind those windows from public view. But that subjective intent must also be reasonable in the eyes of society. For example, I can't walk into a crowded room filled with cops and scream, "No one listen to me!", proceed to discuss a plan to commit murder, and then claim I had an REP. I displayed a subjective intention to achieve privacy, but it is not one which society would view as objectively reasonable. Following this line of analysis, the Supreme Court held in Smith v. Maryland (1979) that any information committed to the care of a third-party is not protected by the Fourth Amendment. In Smith, the Court evaluated whether an individual had an REP in his pen registers (phone company records of the phone numbers dialed from a particular phone line). The Court held that there is no REP where a person voluntarily exposes their information to public view because that person has not displayed a subjective intent to assert their privacy. The doctrine may have been on shaky ground even back in 1979, but certainly the justices deciding the case could not possibly have imagined the world we live in now, where we routinely store our most private information on servers in the hands of third-parties. Clearly the doctrine needs some rethinking. As it stands, law enforcement can access incredibly detailed personal information about a person without a warrant. It is nearly impossible to show a subjective expectation of privacy while still functioning as a member of society since we are so dependent on phones. Personally, I would start by arguing that company privacy policies and password protections indicate a subjective intent to remove electronically-stored personal information from general view. The shear quantity of data being stored indicates to me that any reasonable person would never expect another individual to actually inspect their emails or cell phone location data. We are voluntarily committing the information to unthinking computers which are theoretically secure against unauthorized human intrusion, not to actual human beings. But my instinct is to go farther. The amount of information about an individual collected by networked devices and corporations increases exponentially every year. With the internet-of-things and wearable tech on the rise, the problem is only going to grow. Cell phone location data, heart rate measurements from fitness trackers, dietary information from calorie-tracking apps, complete and detailed purchasing histories from credit card statements, statuses and pictures posted on social media, etc. etc. etc. Each individual datum may be meaningless on its own, but like a jigsaw, when put together they can reveal the most intimate details of a person's life. And there's essentially no way to opt out. So I think we need an opt out method. I think people should be able to assert that the information resulting from a private commercial arrangement is private between the parties and that this should have equivalent effect to a confidentiality privilege (like doctor-patient or attorney-client privilege). A company's terms of service could then include a clause that says something like, "Any information gathered during the provision of these services is to remain private between the parties." If the government can get a warrant, then they can access the information. With so many multiplying avenues for individuals to unintentionally give up their privacy rights, there should be a simple, straightforward method for individuals to reassert those rights.
salmon30salmon 10y ago
I understand that its slightly beyond the scope of this article, but it is important to note that many, many people give informed consent for Google et al to track their location history. Both Google Maps and Google Photos insist on enabling Location History on your account. While Google has proven itself competent at ensuring warrants are valid, I do not feel that is enough protection. Warrants may be valid, but the idea that a single entity has access to my location history and can be compelled to produce it is a bridge to far, in my opinion. Basically, people knowingly and willingly give up their privacy for features and convenience.
curried_haskell 10y ago
You voluntarily connected your cell phone to their cell towers. Why do they even have to tell you they're recording this information? If you don't want them to know where you are, howabout... don't connect to their fucking cell network. If you go for a walk around your city, do you have this expectation that people who see you on the street aren't allowed to remember that they saw you out on the street? If you make a phone call to a business, they aren't allowed to record the fact that you called them, and from what number you called them?

deleted 10y ago

[deleted]

rhizome 10y ago

The voluntary act is choosing to own a cell phone.

bpchaps 10y ago
Heh. I broke down after six months of not having one and settled on a flip phone. The amount of social and logistical requirements these days almost entirely necessitates a phone on you 24/7. It's frightening how much everyone relies on everyone having a phone, including companies. Looking at you, airbnb. It was voluntary to get rid of my cell phone, but it was hardly voluntary to go back.
- coldtea 10y ago
  >The amount of social and logistical requirements these days almost entirely necessitates a phone on you 24/7. Only if you don't have "fuck you" money, one has to add.
Broken_Hippo 10y ago
Agreed with the previous poster. I've not given up a cell phone, but it is difficult to get by in the real world without it. Think about finding a job. Most folks expect to reach only you, on a cell phone. Many employers expect the same. Sure, it is a choice in a broad sense, but it isn't a realistic one if you want to take part in society.
- rhizome 10y ago
  It may be difficult to live without one, but I'm pretty sure that legally, the agreement to let the provider do whatever with your data comes at the point of activation.

rayiner 10y ago

> I'm getting really tired of seeing centuries old laws being cited in 2016's technology. Third party doctrine was articulated after the cell phone was invented. The whole "expectation of privacy" articulation of the 4th amendment is younger than Lisp (dating to 1967).

appleflaxen 10y ago

My understanding of the argument is that the customer has no privacy interest if somebody they voluntarily gave information to (the phone company) voluntarily gives it to the police. Which is hard to argue with: if you tell me a secret, you lose the ability to control the information. (you have no "interest" in my willingness to share the secret). but IANAL, and am happy to be corrected

mooreds 10y ago
> third-party doctrine, the 1970s-era Supreme Court case holding that there is no privacy interest in data voluntarily given up to a third party like a cell phone provider. I don't think the issue is how the cell phone companies give the info to the government (voluntarily or involuntarily), but rather that because you, the consumer, "gave" your location info to the cell phone company "voluntarily", you have no privacy rights with respect to that info. Quotes because the definitions seem fuzzy to me (and to the defendant's lawyers, apparently). I am not a lawyer.
stult 10y ago
The Supreme Court established a test for determining when a government search triggering Fourth Amendment protections has occurred in Katz v. United States (1967). The majority ruled that a government intrusion into an area where a person has a reasonable expectation of privacy constitutes a search within the meaning of the Fourth Amendment and thus requires a warrant issued upon a showing of probable cause. Justice Harlan's concurrence in Katz, though not binding as it was not issued as the majority opinion, has provided the generally accepted two-prong test for determining when a reasonable expectation of privacy exists. Harlan defined an REP as when an individual has (1) displayed a subjective expectation of privacy (2) that society is prepared to recognize as reasonable. (1) and (2) are regularly referred to as the subjective and objective prongs respectively. For an REP to exist, an individual must meet both prongs. To meet the subjective prong, the individual must make an effort to withdraw their activities from public view. If I close the curtains on my front windows, I have displayed a subjective intent to conceal whatever occurs behind those windows from public view. But that subjective intent must also be reasonable in the eyes of society. For example, I can't walk into a crowded room filled with cops and scream, "No one listen to me!", proceed to discuss a plan to commit murder, and then claim I had an REP. I displayed a subjective intention to achieve privacy, but it is not one which society would view as objectively reasonable. Following this line of analysis, the Supreme Court held in Smith v. Maryland (1979) that any information committed to the care of a third-party is not protected by the Fourth Amendment. In Smith, the Court evaluated whether an individual had an REP in his pen registers (phone company records of the phone numbers dialed from a particular phone line). The Court held that there is no REP where a person voluntarily exposes their information to public view because that person has not displayed a subjective intent to assert their privacy. The doctrine may have been on shaky ground even back in 1979, but certainly the justices deciding the case could not possibly have imagined the world we live in now, where we routinely store our most private information on servers in the hands of third-parties. Clearly the doctrine needs some rethinking. As it stands, law enforcement can access incredibly detailed personal information about a person without a warrant. It is nearly impossible to show a subjective expectation of privacy while still functioning as a member of society since we are so dependent on phones. Personally, I would start by arguing that company privacy policies and password protections indicate a subjective intent to remove electronically-stored personal information from general view. The shear quantity of data being stored indicates to me that any reasonable person would never expect another individual to actually inspect their emails or cell phone location data. We are voluntarily committing the information to unthinking computers which are theoretically secure against unauthorized human intrusion, not to actual human beings. But my instinct is to go farther. The amount of information about an individual collected by networked devices and corporations increases exponentially every year. With the internet-of-things and wearable tech on the rise, the problem is only going to grow. Cell phone location data, heart rate measurements from fitness trackers, dietary information from calorie-tracking apps, complete and detailed purchasing histories from credit card statements, statuses and pictures posted on social media, etc. etc. etc. Each individual datum may be meaningless on its own, but like a jigsaw, when put together they can reveal the most intimate details of a person's life. And there's essentially no way to opt out. So I think we need an opt out method. I think people should be able to assert that the information resulting from a private commercial arrangement is private between the parties and that this should have equivalent effect to a confidentiality privilege (like doctor-patient or attorney-client privilege). A company's terms of service could then include a clause that says something like, "Any information gathered during the provision of these services is to remain private between the parties." If the government can get a warrant, then they can access the information. With so many multiplying avenues for individuals to unintentionally give up their privacy rights, there should be a simple, straightforward method for individuals to reassert those rights.

salmon30salmon 10y ago

I understand that its slightly beyond the scope of this article, but it is important to note that many, many people give informed consent for Google et al to track their location history. Both Google Maps and Google Photos insist on enabling Location History on your account. While Google has proven itself competent at ensuring warrants are valid, I do not feel that is enough protection. Warrants may be valid, but the idea that a single entity has access to my location history and can be compelled to produce it is a bridge to far, in my opinion. Basically, people knowingly and willingly give up their privacy for features and convenience.

curried_haskell 10y ago

You voluntarily connected your cell phone to their cell towers. Why do they even have to tell you they're recording this information? If you don't want them to know where you are, howabout... don't connect to their fucking cell network. If you go for a walk around your city, do you have this expectation that people who see you on the street aren't allowed to remember that they saw you out on the street? If you make a phone call to a business, they aren't allowed to record the fact that you called them, and from what number you called them?