Kyle St. Romain | BUSINESS | 09.18.2012 @ 1:00 pm
(Every week, Kyle St. Romain will talk about the business and legal side of the app world. While his opinions don’t always reflect those of Rocksauce Studios, you should hear him out…the guy knows his stuff!)
Looking back, I’ve written a lot about online privacy. Incase you haven’t been following me as closely as you should, here’s a short list to get caught up: Mobile Privacy: It Doesn’t Exist; Privacy law: The Strange Case of Facebook and Netflix; Digital Law: The Fifth Amendment and Passwords Don’t Mix; Digital Law: Update on the Fifth Amendment Password Mixer; and Time to Reconsider Privacy Policies? They Cost A Fortune!
I don’t know about you, but I’m about privacied out. Not! Last week, I saw an article in the Wall Street Journal that talked about record numbers of FBI subpoenas for mobile data and how Google, in particular, is fighting to protect your data. Kudos to the author of that article for citing some law that is on point for the conversation: The Third Party Doctrine. I promised to talk about this with you some more, so let’s discuss. (Warning: I’m ‘bout to drop some legalese on you here, but I’ll try to go easy)
The Fourth Amendment is the foundation of privacy law in the United States. It guarantees “the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures.” Boo-ya, Big Brother!
Since the early 70’s, SCOTUS (Supreme Court of the United States) has interpreted the Fourth Amendment to allow third parties to consent to investigations that target someone else’s privacy without violating the target’s constitutional rights. In other words, you don’t have a reasonable expectation of privacy for stuff you tell your sorority sisters during initiation.
To put this in a more tech relevant context, on December 14, 2010 the DOJ got a court order to compel Twitter to snitch on users suspected as being involved with WikiLeaks. Some hyper technical, ultra fancy legal maneuvering ensued, and the government invoked the third-party doctrine as the basis for its request of data from Twitter. Boom! Check out the Terms of Use and Privacy Policy grandma, you’re in Twitter’s world now (and you signed away a lot of your privacy rights – you really should read those pesky privacy policy things sometime).
In essence, the Fourth Amendment protected the parties’ communications; however, their involvement with Twitter gave the government an inside man: a third party if you will. The government basically used Twitter (a somewhat consenting third party) to breach its users’ privacy. The courts have made distinctions between content (the message itself) and non-content (information about the transmission of a message) data, and while content data is usually afforded more protection they still find ways to get at both types of data. Think of non-content as “meta data,” a hot topic in eDiscovery conversations – in case you’re wondering. For now, just know that almost nothing you communicate online or through your cell phone or through some other digital third party (pretty much everything you say and do in today’s world) is protected by the Fourth Amendment.
While the third party doctrine didn’t used to be as much of a problem (it used to be easier to not involve a third party in your communications, i.e., discuss where the bodies are buried in a private office behind closed doors), in today’s mobile/digital age, third parties are involved in almost every step of communications (“data processing”). Whether that’s Google’s servers for your Gmail, Twitter’s servers for your Tweets, Facebook for your Status Updates, or whatever – your conversations aren’t so private anymore. But you already knew that, didn’t you?
The Third Party Doctrine is widely acclaimed as the weakest link in Americans’ privacy rights. I agree. Most of its critics note the shaping effects of 9/11 on our expectation of privacy (balanced with the government interests of security), and that the third party doctrine is just a convenient tool to effect big brothers purpose. If it weren’t there, they would find some other way around that pesky Constitution.
On the flip-side, proponents consider the Third Party Doctrine important to the technological neutrality of the Fourth Amendment that prevents the abuse of third parties and constitutional imbalances. Basically, they believe that the Third Party Doctrine rebalances the expectation of privacy criminals have, given that so much of the world is now posted online. The example is that even before our recent online world, criminals had to meet in bars or drive to their hideout – where they were subject to surveillance. I guess – I just think the Third Party Doctrine applied to today makes the government’s job way too easy – especially with the burden of production when dealing with the government in criminal investigations.
Anyways – if you’d like a good starting place to further your understanding of the Third Party Doctrine, check out these two cases: US v. Matlock, 415 U.S. 171 (1974) (origins of the third party doctrine); Georgia v. Randolph, 547 U.S. 103 (2006) (“widely shared social expectations” standard of privacy). Beware: the rabbit hole runs deep.
In the mean time, how do you feel about the Third Party Doctrine in today’s digital society? Should your private Twitter conversations be kept safe from the snooping eyes of Uncle Sam, or is the government’s interest in security great enough to breach that expectation of privacy? Do we need to revisit this misguided doctrine and reconcile it with the fact that almost every communication is now carried through a third party? Would you rather not say for fear big brother is watching? Then tell us how your fantasy football team did this weekend in the comments below (unless it’s too embarrassing, which I wouldn’t understand since I won both my match ups).