Privacy and Civil Liberties in the Digital Age
Last year, a researcher discovered that iPhones — among the world’s most popular electronic devices — were storing detailed, unencrypted information on their owners’ locations and uploading it to any computer they were connected to. Subsequent research revealed that both Apple iPhones and Google Android devices were sending detailed location information back to Apple and Google — and that in some cases, users didn’t know about it and even if they did, they had no way of stopping it.
Just a few months ago, another researcher discovered that software made by a company called Carrier IQ had been secretly installed on millions of smartphones and was tracking consumers’ locations and other private information. In both cases, millions of consumers who were carrying smartphones in their pockets had no idea that their personal information was being collected — and no way of stopping it.
When people talked about protecting their privacy when I was growing up, they were talking about protecting it from the government. They talked about unreasonable searches and seizures, about keeping the government out of their bedrooms. They talked about whether the government was trying to keep tabs on the books they read or the rallies they attended. Over the last 40 or 50 years, we’ve seen a fundamental shift in who has our information and what they’re doing with it. That’s not to say that we still shouldn’t be worried about protecting ourselves from government abuses. But now, we also have relationships with large corporations that are obtaining, storing — and in many cases, sharing (and selling) — enormous amounts of our personal information.
When the Constitution was written, the founders had no way of anticipating the new technologies that would evolve in the coming centuries. They had no way of anticipating the telephone, and so the Supreme Court ruled over 40 years ago, in Katz v. United States, that a wiretap constitutes a search under the Fourth Amendment. The founders had no idea that one day the police would be able to remotely track your movements through a GPS device, and so the Supreme Court ruled in January, in United States v. Jones, that this was also a search that required court approval.
All of this is a good thing: Our laws need to reflect the evolution of technology and the changing expectations of American society. This is why the Constitution is often called a “living” document.
But we have a long way to go to get our modern privacy laws in line with modern technology.
Between our wireless phone company, the company that we use for e-mail, our smartphone company and the companies that provide the apps on our phones, there exists a detailed, expansive record of everywhere we’ve been, every website we’ve visited and everyone we’ve called, e-mailed and texted and what we’ve said — often going back years and years.
In many if not most cases, these companies are legally free to share this information with whomever they want. And in most cases, people have no idea that this is happening. This all amounts to a really big deal.