Expectation of Privacy

How long before the Fourth Amendment to the United States Constitution becomes just a collection of empty words?  Recently there have been a couple of court cases that have provided conflicting guidance on the legal test for the applicability of privacy protections.  It’s worth reading the Wikipedia entry for Expectation of Privacy to get a very basic understanding of the legal tenets behind this.  In both cases the issue stems from the FBI’s use of GPS devices on suspects cars without a warrant.  In the first case, United States v. Maynard, the U.S. Court of Appeals for the District of Columbia decided against “always-on” surveillance and to uphold that there had been a Fourth Amendment violation.  In the second case, United States v. Pineda-Moreno, the U.S. Court of Appeals for the Ninth Circuit decided that the similar GPS tracking was not in violation of the Fourth Amendment.  Clearly, this looks like an issue that may need to get to the U.S. Supreme Court to more fully resolve.

However, what has gotten my attention in these cases is not so much the expectation of privacy issue per se, but that we may be loosing this expectation by virtue of some of the technologies that in some cases are being mounted on our property (ie. GPS devices under cars), and to what extent is that limited.  With the continuing growth of smart phones, most of which have some form of GPS embedded in all of them, does the U.S. v. Pineda-Moreno case imply that we are all slowly giving up our Fourth Amendment rights through the use of various technologies?

Recently, there has been a spate of stories about how RFID chips are being put to use for tracking various groups of people’s activities.  The first announcement was about how a school in California was going to provide jerseys to kids with RFID chips embedded in them to reduce the cost of tracking them under a program called Child Location, Observation and Utilization Data System (aka. CLOUDS).  Note, that the problem Contra Costa County is trying to solve seems valid and legitimate, but the unintended (or ignored) consequences could be significant (if my kid wears her jersey home and we go out for dinner, does that imply that I have given up my expectation of privacy?).

The next program is being deployed at Northern Arizona University.  This program is to track student attendance.  While I think that the administrators here have forgotten that this is a university, where the incentive to learn and graduate should have nothing to do with attendance, at issue is the fact that students are being tracked.  While the use here is clearly more speculative, one could rationalize its value to the university in terms of better understanding their resource deployment and utilization (ie. use smaller rooms for classes where most students tend not to attend).

The third program, which is deployed at a senior citizen caring facility in Milwaukee, WI, is meant to “allow designated officials caring for these senior citizens to know their whereabouts and activities”.  Can anyone argue with this use?  Probably not on the face of it.

All of these programs lead to the concern on how use of this information against the very citizens these applications are intended to serve, will be treated by the courts in support (or not) of our protections under the Fourth Amendment.  While I’m sure that there is a certain minimal amount of security standards that these systems are being held to, clearly the applications they are being used for would not warrant the sort of security one might expect from an RFID deployment on passports.  But to the extent that information from these devices can be used against us, then the cost and the need for paramount security rise accordingly.  As most security experts know, RFID chips can be tampered with.  If you don’t believe that, just ask the Germans who recently had the technology they are proposing to use for their citizens’ ID cards, compromised.

My point here is that we put a lot of trust into technologies for specific applications, but when the data that emanates from these systems is used for unintended purposes, the consequences can be severe.  Data from applications that make use of RFID chips, suffer the same privacy issues that are raised by how our other on and off-line information is collected, stored, combined and disseminated.  While there are loads of issues around those, when we begin to add on the legal ramifications around use of this information, then we really need to step back and more fully consider the consequences of these supposedly useful applications.

UPDATE: Looks like this topic is getting plenty of attention.  Just caught the following ABC News report titled “What Info Can Uncle Sam Dig Up About You?

UPDATE: Here’s another great analysis titled “GPS Monitoring Revisited” which goes over the two cases listed above in great detail about the rulings themselves.

UPDATE: Excellent analysis by Prof. Susan Freiwald comparing and contrasting the conflicting GPS tracking rulings mentioned above.

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