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The Suburbanite
  • Fourth Amendment: No unreasonable searches

  • The Fourth Amendment — ratified 222 years ago — protects citizens from unreasonable searches and seizures. But there’s plenty of gray area; enough that the U.S. Supreme Court has heard more than 250 cases at least partially based on Fourth Amendment arguments.

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  • How much do I track thee? Let me count the ways.
    With a GPS-equipped smart phone in your pocket, you drive to work in downtown Canton; click. You zip by a traffic camera along I-77; click. You exit the highway, and pass a city crime control camera; click. You fill up at a gas station, where a security camera catches you paying with a credit card at the pump; click and click. Then, a quick stop at the ATM; click. You arrive in the office parking lot, where a security camera records you; click. You swipe a key card to enter the building; click.
    Finally, out of the public eye.
    Until that is, you log on to your computer.
    Click, click, click ...
    “We have this problem where technology is growing so much faster than the law,” explained Sharon Bradford Franklin, senior counsel at The Constitution Project, a non-profit think tank in Washington D.C. “The government has been interpreting statutes ... based on things no one could have imagined at the time.”
    The Fourth Amendment — ratified 222 years ago — protects citizens from unreasonable searches and seizures. For the most part, police must illustrate probable cause to a judge, who then can sign a search warrant, which allows the police to enter your home to search for specific items.
    But there’s plenty of gray area; enough that the U.S. Supreme Court has heard more than 250 cases at least partially based on Fourth Amendment arguments. In the process, those decisions have made it clear that citizens are guaranteed a reasonable expectation of privacy, depending on where they are.  
    However, today’s gadgetry has blurred the privacy lines. Here’s a mere a sampling of some headline-making products and practices: Spy drones, crime cameras, red light cameras, security cameras, Internet provider addresses, metal detectors, bag checks, National Security Agency wiretapping, Cybersecurity legislation, Homeland Security reviews of Twitter and Facebook posts, and TSA Visible Intermodal Prevention and Response teams.
    The issue also can pit privacy rights against public safety. After all, it was private security cameras that helped authorities identify suspects in the Boston Marathon bombings. So, what’s the problem?
    THIRD PARTY DOCTRINE
    Privacy advocates say the most important issue facing citizens today — though many probably don’t realize it — is the so-called third party doctrine.
    The Fourth Amendment provides protections against the government, not against individuals or businesses. But what if the government, without a search warrant, gets its information about you from another individual or business?
    That’s the third party doctrine.
    And it’s primarily based on two 1970s Supreme Court cases (Smith v. Maryland and U.S. v. Miller), in which justices said police didn’t need warrants to look at banking or phone records. However, as more and more personal information moved online, and surveillance cameras and GPS systems have become the rule not the exception, many question whether the third party doctrine is outdated.
    Page 2 of 3 - “We all carry tracking devices in our pockets; they are called cellphones,” said Alan Butler, advocacy counsel for the Electronic Privacy Information Center, a nonprofit public research center in Washington D.C.
    Most smart phones sold today contain a Global Positioning System to help locate you in case of a 9-1-1 emergency.
    “Or to find you whenever they want,” said John Wesley Hall, a criminal defense lawyer in Little Rock, Ark., and author of the book “Search and Seizure.” “The Fourth Amendment was designed ... to keep the government out of our private affairs. It had nothing to do with criminal defense. It was the response to the British writs.”
    Prior to the Revolutionary War, Writs of Assistance gave British authorities power to search homes any time for any reason.
    Hall said the government has chipped away at the Fourth Amendment, especially after Sept. 11, 2001, with the Patriot Act. The concern, he said, is abuse of powers, which he added is practically human nature.
    “If you give power, they will take it, and then some,” he said. “The police can not protect us against every crime. I don’t want them to. Do you want to become a target for police snooping every day?”
    BREAD CRUMBS
    The argument that if you’re not doing anything wrong, then you have nothing to worry about may sound rational on the surface, said Bradford Franklin, of The Constitution Project — but she added that’s not always true.
    “There are all sorts of activities that people do in their daily lives that aren’t criminal, but they probably consider private and wouldn’t want to be recorded,” she said. “Going to a psychiatrist’s office, or an AA meeting, a fertility clinic ... or visiting somewhere for a controversial cause, or for politics.”
    Security cameras have advanced to the point they now can capture audio as well, said Dan McKimm, president and chief executive of ProTech Security, a private firm in Jackson Township. “Many of these are not just ‘dumb’ cameras,” he said.
    The Constitution Project is one of more than 75 organizations — ranging from the political left to right — that banded together to form the Digital Due Process Coalition. They’re lobbying congress to amend the 1986 Electronic Communications Act, which contains most of the laws related to the Internet.
    The third party doctrine is squarely in their sights.
    “It does not really make sense in this digital age,” Bradford Franklin said.
    With social media, search engines, and email, it’s become almost impossible to function in society without leaving digital footprints.
    “On a computer, we leave bread crumbs everywhere,” said Alan Butler, advocacy counsel for the Electronic Privacy Information Center, a non-profit public interest research group in Washington D.C.
    Page 3 of 3 - Among the Coalition’s goals: A requirement for authorities to obtain a search warrant, based on probable cause of a crime, to read content of messages and emails, or to access cellphone GPS tracking information.
    “Right now, we have a little bit of patchwork and confusion, based on court decisions,” she said.
    Hall, the defense lawyer, and a former president of the National Association of Criminal Defense Lawyers, said it’s long overdue.
    “All those old farts on the Supreme Court don’t even understand how a cellphone works,” he said, referring to the 2010 Ontario v. Quon case. “When you read it, it’s clear that (Justice) Roberts didn’t understand that cellphones don’t talk directly to each other ... they go to towers first.”