Recently, Wisconsin legislators introduced a bipartisan bill that would require law enforcement to obtain a warrant before being able to use cell phone data as a means to track Wisconsin citizens’ locations. While it may seem like a given that the police would need a warrant before accessing information from citizens’ cell phones, as the situation currently stands, law enforcement may simply request the data from telephone companies — bypassing the “right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures” guaranteed by the Fourth Amendment using what is known as the third party doctrine.
The third party doctrine originated in the 1976 United States Supreme Court Case United States v. Miller in which the Supreme Court ruled that a person has no claim to privacy when information is voluntarily given to a third party. For example, police cannot place a tracking device on a person’s car without a warrant to do so, but through the third party doctrine the exact same tracking information collected from a cell phone GPS app without a warrant is legally permissible as the citizen has “voluntarily disclosed” their location to a third party.
While controversial from the beginning, the third party doctrine has become even more dangerous as the world has gotten more technologically advanced. As the world becomes more and more tech-reliant, the meaning of the Bill of Rights must advance with it. If passed into law, the bill that requires a warrant to gain access to cell phone tracking data would be the first step of many needed on a state and federal level to update the application of the Fourth Amendment into the modern world.
The Internet has made third party disclosure extremely prevalent and this is especially dangerous as the majority of citizens do not know they are “voluntarily disclosing” private information to third parties on a seemingly endless basis. Every time you click “Accept Terms and Conditions,” you allow the company — and potentially the government — access to your information and communications.
We live in a world where personal effects are becoming increasingly less physical and more digital by the second. Yet as it stands now, the application of the Fourth Amendment is extremely outdated, as it is applied almost solely to physical property. While warrants are still required for searches of physical personal property, as more and more things are communicated via the biggest third party of them all — the Internet — personal effects that previously necessitated a warrant for search such as bank statements, personal communications and even medical records can be considered fair game for law enforcement to search and seize without a warrant. In the modern era, disclosure of sensitive personal information to third parties has become virtually unavoidable.
There is a reason that the Fourth Amendment exists: to provide a powerful check on law enforcement and to guard against corruption. Without the privacy protections applying to all personal effects, physical or otherwise, law enforcement is able to go widely unchecked, leading to the possibility of government surveillance. It is wishful thinking to suppose that the possibility of government surveillance is nothing more than a conspiracy theory.
In 2013, the large leak of National Security Agency documents found the government agency had been running a top-secret program known as PRISM, which had been collecting data such as e-mails, messages, photos, videos, data stored in the cloud and social network profiles from nine major technology companies such as Microsoft, Apple, Youtube, Facebook, Skype and Yahoo since 2007. The purpose of this program was to search for foreign spies and terrorists but an unreported number of innocent Americans — the people the Fourth Amendment is designed to protect from unwarranted government intrusion — had their data “incidentally” searched as well. Per PRISM rules, a tech analyst need only have 51 percent certainty that a target was a foreign national that was overseas at the time of collection before requesting all of their personal data — a much lower standard than that necessary to gain a warrant.
While the program may have had no intent of explicitly spying on citizens, the fact that it could even access citizens’ information without the consideration a warrant brings is blatantly ridiculous. Programs such as PRISM are wildly unconstitutional in the modern era but completely legal under the outdated third party doctrine.
The Wisconsin bill, which is still in introductory phases, would be a small step in the right direction as it mandates a warrant for the usage of cell phone data to track citizens. However, this bill is by no means the solution to the growing privacy problems. The bill does not protect all electronic communications or even all cell phone data — just cell phone information can be used to track citizens’ locations. Still, this bill can be considered a start for the state of Wisconsin, but the state and the nation as a whole still have a long way to go in terms of facing the privacy violations brought on by the third party doctrine in the modern era.
Madeline Sweitzer ([email protected]) is a freshman majoring in political science and intending to major in journalism.
