What will it take to save privacy?

August 10, 2018

Mukund Rathi reports on a recent Supreme Court case that limits the ability of the police to access our information — and explains why the fight for our privacy rights will need to be fought on a different basis.

EARLIER THIS summer, the U.S. Supreme Court, in the middle of spewing out horrible attacks on workers and oppressed people, made one good decision.

In Carpenter v. United States, it ruled that the police must get a warrant to access a person’s location data held by phone companies. This is a victory for privacy and restriction of police power.

Courts normally allow the police to run rampant, so any restriction is a welcome relief. This ruling is an exception to the “third-party doctrine,” under which the government doesn’t need a warrant to search people’s information when held by third parties like phone companies.

The U.S. Supreme Court
The U.S. Supreme Court

However, the ruling has some notable limitations. First, warrant requirements aren’t the great protection from police surveillance that they’re made out to be, and second, they offer no protection against corporate surveillance.

These are longtime problems in the fight for privacy and reflect the skewed motives and ideologies in its leading alliance, between civil rights lawyers and technology companies.

Carpenter is a welcome development, but to expand on it fully, the fight needs to come from the bottom up. The current mobilizations of tech workers to force companies like Microsoft and Google to cease cooperation with the racist schemes of the Pentagon and ICE are showing a new factor in the fight for privacy and against police power.

THE CARPENTER case arose because police, responding to a series of robberies, used a federal court order to access phone companies’ records on several suspects.

These records include location data, which our phones are constantly transmitting to the companies’ cell towers to form the connections we use to make calls, send texts and go online. The police used this location data as circumstantial evidence, placing suspects near the crime scenes.

In the courts, the question was: Should a warrant under the Fourth Amendment, rather than just a court order, be required for the police to get this data? The Fourth Amendment prohibits “unreasonable searches and seizures” and requires warrants based on “probable cause,” which specifically describes what can be searched and/or seized.

One reason this matters is that to get a warrant, police must show enough evidence to a judge that there is “probable cause” to believe there is criminal activity to investigate. The bar for a court order (“reasonable grounds” rather than “probable cause”) is lower.

Police have a shocking amount of discretion and power to “investigate crimes” — essentially to invade people’s privacy. This ranges from subpoenaing businesses for information they have about people, to stopping and frisking people on the street. The fight for privacy, if carried out meaningfully, is part of the fight against the police. Requiring police to get a warrant can be a hedge against their power.

But based on the “third-party doctrine,” established by the Supreme Court in the late 1970s, a warrant hasn’t been required for things like people’s location data held by phone companies.

In two cases, the Court ruled that police didn’t need a Fourth Amendment warrant to get people’s records of dialed phone numbers or bank records. It decided that people had no “reasonable expectation of privacy” in this information because they “voluntarily” handed it over to the phone company and bank in order to use their services.

BOURGEOIS LAW on privacy, as with other areas, has historically changed in response to the political moment and political movements.

The concept of “reasonable expectation of privacy” was invented by the Supreme Court in 1967, a decade before the third-party doctrine, as part of a reformulation of how far Fourth Amendment protections should extend and when warrants are required.

Before this, people were protected only if the government physically intruded on their property, such as by searching a house. But this allowed the government to freely wiretap phones — which it took full advantage of, targeting the social movements of the 1960s in particular.

The Supreme Court confronted this problem by discarding the intrusion framework and ruling that the Fourth Amendment applies where people have a “reasonable expectation of privacy.” The concept of “reasonableness” is central to bourgeois law, as it gives judges the flexibility to apply bourgeois ideology to resolve legal conflicts.

In the Fourth Amendment context, this means deciding how worthy the privacy protection is and balancing it against the interests of police. The Court decided that people have a reasonable expectation of privacy in phone conversations, so a warrant was required for wiretaps.

However, the third-party doctrine says that when people “voluntarily” give information to a third party, the cat is out of the bag — so it’s unreasonable to expect that information to be private. This means it’s not protected by the Fourth Amendment, and police don’t need to get a warrant.

In the last few decades, tech companies have exploded in size, building electronic and digital infrastructures on which people and businesses communicate, socialize and commercially transact.

These increasingly monopolistic companies control more and more people’s data, and under the third-party doctrine, it’s all unprotected by the Fourth Amendment. (On rare occasions, courts have carved out exceptions, such as for the content of e-mails.)

None of this is voluntary — in our society, we have no choice but to get cell phones, open bank accounts, create social media accounts, etc. As workers and consumers, we have to submit to capitalists in order to get the resources that sustain our lives.

In Carpenter (and in other recent cases), the Supreme Court partially conceded this. It noted that carrying a phone is “indispensable to participation in modern society,” and by tracking it, the government achieves “near perfect surveillance, as if it had attached an ankle monitor to the phone user.” There is “no way to avoid leaving behind a trail of location data” so “in no meaningful sense” is this voluntary.

So the Court carved out a narrow exception to the third-party doctrine for an individual person’s location data held by phone companies.

CARPENTER WAS a clear shift by the Supreme Court in response to the political moment of increased concerns about privacy in the digital age. These large concerns, however, have been filtered into narrow demands for warrant protections.

Tech companies, for example, are specifically concerned about state surveillance interfering with their business models, which require their own privacy invasions. These companies — from Apple to Verizon to Facebook — submitted a brief in Carpenter, arguing not only against the third-party doctrine, but also that “Fourth Amendment protections for digital data should be strong.”

The companies note that “customers entrust [them] with some of their most intimate information, including what they search, where they are, and details of their daily lives.” Of course, “trust” is besides the point, because as the brief itself argues, using these companies’ services is “fundamental” to life in this society.

Regardless, the point is that if customers are wary that police are snooping through this information, the political backlash may hit the companies’ bottom lines. Will customers be willing to buy a “smart speaker” for their home if they’re worried the government may be listening in? The companies want unfettered surveillance powers for themselves, and limited ones for the state.

Some ruling-class judges also want to slightly limit state surveillance power. In a 2012 case, United States v. Jones, the Supreme Court ruled that police violated the Fourth Amendment by attaching and using a GPS tracker on a suspect’s vehicle.

During oral arguments, Chief Justice Roberts incredulously pointed out to the government’s attorney that, by their theory, it wouldn’t violate the Fourth Amendment if police spied on the justices and “put a GPS device on all of our cars [and] monitored our movements for a month.”

In Carpenter, the Court pointed out that because everyone carries a phone, the government’s “newfound tracking capacity runs against everyone,” not just those people “under investigation.” In short, judges don’t want the whole ruling class to also get caught up in the surveillance dragnet.

WHILE THESE fissures in the ruling class and the state can be used to our advantage, they often end up defining the goals of privacy activists, like around the search warrant. Civil rights lawyers unintentionally contribute to this narrowness by exaggerating the virtues of warrant protections.

Warrants are supposedly a grand compromise between police power and people’s privacy, with the “neutral and detached” judge providing oversight. Police must gather evidence, demonstrate to the judge that “probable cause” exists, and then follow the specific warrant instructions in carrying out the search/seizure.

But this just doesn’t describe reality. For example, courts routinely make procedural adjustments to make it easier for police to get a warrant. The Supreme Court itself has noted that “well over a majority of states allow police officers or prosecutors to apply for search warrants remotely through various means, including telephonic or radio communication, electronic communication such as e-mail, and video conferencing.”

But while courts make it easier for police to detain and arrest people, they don’t make it easier for people to enforce their legal rights. If someone is illegally detained, can they immediately video conference with a judge to get an emergency habeas order?

To accurately describe reality, the theory cannot be that courts and judges are neutral and detached. Rather, as has become clearer to many people thanks to movements like Black Lives Matter, judges are stewards of an unfair, ruling class legal system, and so are willing to condone even the most horrific police abuses.

This doesn’t mean warrant requirements are worthless, but that our argument for them is about expanding rights within a fundamentally unfair system, not some fantasy about the rule of law. But of course, neither judges, tech companies, nor most civil rights lawyers are willing to go there.

Our side has to be. Carpenter is a step forward, but to expand its carve-out of the third-party doctrine and really get privacy from police power, we have to get radical.

Slow, respectful civil rights litigation needs to make way for a frontal critique of not just warrantless spying by police, but also spying by tech companies, the cooperation between the two, and the legal system which allows all of it.

There are clear foundations on which such a movement could be built. Mass public outrage followed Edward Snowden’s revelations that U.S. tech companies were crucially supporting — to the tune of millions of dollars in payments — the National Security Agency’s global surveillance programs.

The Black Lives Matter movement opposes not just police murder, but also the daily harassment and intrusion that comes with police occupation.

Today, as tech workers at Google, Microsoft and other companies are taking the lead in pressuring these companies to stop providing services to government agencies that are targeting immigrants, carrying out drone wars and more, the potential seeds of a larger fight against government spying and for our privacy rights can be glimpsed.

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