Paralegal Guide to Technology, Privacy and Free Speech
The rapid advancement of technology in recent years has put threatening pressure on one of America’s most fundamental rights: the right to privacy. The Fourth Amendment of the United States Constitution grants Americans guaranteed protection against unreasonable (unwarranted) searches and seizures from law enforcement officials. However, this Amendment’s guarantee of privacy is not categorical. Limited by its use of the vague phrase “unreasonable search” and lacking a strict definition, the Fourth Amendment’s protection of privacy is becoming increasingly blurred by the pervasive expansion of technology – namely, the Internet and social media.
The modern person’s life is routinely consumed in time spent interacting with technology. In fact, said modern person spends nearly two hours a day online where the minutiae of daily life are increasingly being carried out. Bills are paid online from smart devices; holiday shopping is done via Internet; relationships are maintained and built on social media platforms. So much time spent on the Internet comes at a price, however. Every click made online – especially on social media sites like Facebook – stores highly valuable personal information that uniquely identifies you and your online behavior. A Massachusetts Institute of Technology class project was able to decipher a person’s sexual orientation with 78% accuracy by analyzing MIT student Facebook profiles. Two University of Texas researchers were able to “de-anonymize” customer data of Netflix users by statistically analyzing an individual’s pattern of movie ratings and recommendations. In De-anonymizing Social Networks, the same University of Texas researchers were able to identify 30 percent of the users of both Twitter and Flickr by examining correlations between accounts. Furthermore, this information is highly valuable. One of the most prominent forces behind Facebook’s massive initial public offering was the data that it was able to track and share with the site’s advertisers – data that stores the online behavior of nearly 800 million users.
While the Internet offers a great deal of convenience, how much privacy does an individual retain while online? This question introduces valid legal questions for which some tech giants have had to answer in the last decade. Facebook, Google, and even Sears have been the subject of numerous investigations regarding dubious privacy policies that led to unwanted sharing of personal information. In the post Patriot Act era, some now question whether this data is available to the government, representing a major threat to the rights granted by the Fourth Amendment.
Additional Reading on Privacy and the Internet
- How Privacy Vanishes on the Internet
- Netflix and Privacy Concerns
- Facebook in Privacy Breach
- The Wall Street Journal’s What They Know Series
- Online Consumer Privacy
Global Position Systems, Heat-Sensing Technology, and Digital Devices in a Post-Patriot Act America
Additional technologies also threaten personal privacy. Advancements in global positioning systems (GPS) enable law enforcement officials to unnoticeably track a person of interest (see United States v. Jones). Heat sensor technology can penetrate the walls of your home to gain greater knowledge of your private activities in a non-invasive way. When apprehended by a police officer, said officer can peer into some of your most personal information by searching through your phone. Each issue found its way to the courts (see below for more information), and each was ruled a violation of the Constitution’s Fourth Amendment. However, the potential still remains for the day when the use of similar technologies or techniques is considered an “acceptable search” under the Fourth. In Kyllo v United States, it was decided that using heat sensor technology to pry inside one’s home was an illegal search, but only so long as the technology used was not in the general public use. So what happens when is it is in the general public use?
At its core the tri-issue of technology, Internet, and privacy is this: the rapid advancement and extreme popularity of new technologies are pinching privacy and narrowing an individual’s Fourth Amendment rights. The issue of technological progress and Fourth Amendment rights will be a defining legal issue in the decade.
- Supreme Court of the United States Blog: “Why Jones is Still Less of a Pro-Privacy Decision than most Thought”
- Supreme Court of the United States Blog: “Reaction to Jones v. United States: The Government Fared much better than Everyone Realizes”
- Internet Cases: “Cops Violated Fourth Amendment in Warrantless Search of Digital Camera”
- The New York Times: “Privacy, Technology and Law”
- The Wall Street Journal: “Judges Weigh Phone Tracking”
- The Electronic Privacy Information Center: The USA Patriot Act
Free Speech, Media Law and the Internet
The steady advancement of technology is also having an effect on First Amendment rights. The First Amendment protects the right to freedom of religion and freedom of expression from government interference. The freedom of expression includes the rights to free speech, freedom of the press, and the right to assemble and petition the government to redress grievances. While the increasing use of technology has had the unexpected consequence of threatening Fourth Amendment rights, technology – namely the Internet – has greatly expanded the First Amendment’s freedom of speech and press. Indeed, the Internet is almost solely responsible for making speech freer today than at any time in American history while also transforming the practice of journalism altogether. In contrast to even ten years ago, the vast amount of new-age journalism now takes place on the Internet. At the hands of the Internet, print journalism seems to be dying a slow death at.
Readings on the Decline of Print Journalism
- America at the Digital Turning Point
- Newspaper Death Watch
- Declining Revenue at The New York Times Company
- The Death of the Newspaper
Although the Internet has opened up channels for everyone to have a ‘voice,’ it simultaneously opened channels for speech to be abused. While protecting basic forms of speech, the First Amendment also prohibits those that may “breach the peace” or “cause violence.” Caught beneath this umbrella of unprotected or less protected forms of speech are child pornography, information about illegal activities (like drugs), military or government secrets, and making threats. Not surprisingly, all the above are abundantly accessible on the Internet with no practical way of stopping them without limiting free speech or violating the Fourth Amendment. Large-scale censorship of the Internet – perhaps the best way of preventing the illegal manifestations of speech – represents grave violations of free speech and privacy. Although drafted to eliminate copyright infringement on the web, the Stop Online Piracy Act (SOPA) and related Protect Intellectual Property Act (PIPA) was recently shelved due to the enormous public outcry that SOPA suppresses free speech. Lawmakers are also considering legislation to stop child pornography. Called the Protecting Children from Internet Pornographers Act of 2011, the law would require Internet providers to track their clients’ Internet activity and save it for 18 months along with their bank account and credit card numbers. If this bill were passed, opponents say it represents an egregious violation of the Fourth Amendment’s protection of privacy.
With little way of preventing the acquisition and dispersal of illegal information or child pornography on the Internet, these harmful forms of expression are, essentially, beyond the reach of the law.
Additional Reading on Efforts to stop Abuses of Free Speech
- United States Case Against WikiLeaks
- The Legislation That Could Kill Internet Privacy for Good
- How SOPA Violates the First Amendment
- Committee on the Judiciary Statement Regarding Postponement of vote on SOPA and PIPA
The freedom of speech has become so free that the unchecked propagation of harmful material is endangering the intention of the First Amendment altogether. The purpose of the First Amendment is to enable free expression by limiting government’s power to restrict it. What happens when speech has become so free that the government can longer control its most dangerous forms? This question leaves one to ponder if the First Amendment has been rendered obsolete by advancing technology such as the Internet. Time will tell.
National Journals of Law and Technology
- Harvard Journal of Law and Technology
- Yale Journal of Law and Technology
- Stanford Technology Law Review
- The Columbia Science and Technology Review
- Berkeley Center for Law and Technology
- Duke Law and Technology Review
- North Carolina Journal of Law and Technology
- Virginia Journal of Law and Technology