Frank Lin, a 3L at the University of Oregon, has a new law review article out entitled "Siri, Can You Keep a Secret? A Balanced Approach to Fourth Amendment Principles and Location Data."
I asked him to comment on his motivation for the article and he responded as follows:
I was drawn to this topic because privacy is one of the most important issues facing the American public today and it is one that has recently come to the forefront of public policy discourse. The rapid development and accessibility of technology has allowed Americans to reach new levels of interconnectivity. The implication of this is that, whether intentional or not, more details about our lives are being shared with public and private actors. The application of Fourth Amendment protection in a world where our access to privacy is quickly evolving poses a challenge for courts and law enforcement, especially in the context of location data. To this end, I wanted to advocate for an approach that is easily applicable, and more importantly, one that balances legitimate government interests and privacy concerns of the People.An excerpt from his introduction:
The Fourth Amendment to the United States Constitution provides the right for “people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” Underlying this phrase are guiding principles that have deep roots reaching as far as the Roman Empire. For instance, Roman statesman Cicero stated, “[w]hat is more inviolable . . . than the house of a citizen[?] . . . This place of refuge is so sacred to all men, that to be dragged from thence is unlawful.”
But how do historic principles apply to modern society? The Fourth Amendment traditionally protected papers located in homes or in luggage. Today, however, information is no longer constrained to fading parchment. Information and methods of communication have transcended into a digital era, where ideas and beliefs reside in computer systems in distant locations that are maintained by third parties. Thus, it is not always clear how the Fourth Amendment applies to the information age.
Some worry that law enforcement’s use of location data can pose an objective harm, as they fear that the government will subject the public to non-stop surveillance. Judge Flaum from the Seventh Circuit noted that “[t]he constitutional ill of prolonged or mass use of GPS technology would not necessarily be based on the information acquired by the device but on the fact of the government’s gaze.”
The legality of law enforcement’s use of location data remains ambiguous in the absence of clear direction from either the judiciary or the legislature. Further, the majority of the existing scholarship on the subject remains unworkably vague and hostile toward the government’s use of location data to aid in the investigation and prosecution of crime. This Comment proposes a standard for government access to location data that is not only practical, but also one that balances the legitimate interests of law enforcement and the privacy concerns of citizens.