Modern technology has come a very long way. Access to powerful computing is commonplace in the U.S. household. Cell phones are as well, many with personal computer grade performance with the rise of “smart phones”. As these technologies have advanced, so too has the dependence on them. Much more personal data is stored, collected, and transmitted through these devices. This, in turn has given rise to questions as to how the principles of privacy will apply to electronic data.
• 91% of all people on earth have a mobile phone • 56% of people own a smart phone • 50% of mobile phone users, use mobile as their primary Internet source • 80% of time on mobile is spent inside apps • 72% of tablet owners purchase online from their tablets each week1)
What this means is that the majority of Americans are carrying a degree of personal data on their person, the extent to which was unheard of two decades ago. The American Constitution contains the Fourth and Fifth Amendments, which concern privacy right in the form of search, seizure, and self-incrimination. However, these amendments were written well before the existence of computers, let alone cellphones and smartphones. We are now in a digital era and must adapt the amendments to the new world. This seemingly gray area of legality and judicial authority is currently being explored in the United States and thus, better defined. There have been many legislative enactments dealing with the privacy of electronic data in relationship to the government and law enforcement, some with very conflicting ideologies, including the Electronic Communications Privacy Act of 1986 and the U.S. Patriot Act. Case law has also fluctuated between varying times and jurisdictions in this area. Many of these questions will find stronger conclusions in Supreme Court cases that are set to be reviewed by the U.S. Supreme Court. Law enforcement and the NSA continue to race and evolve their methods and technology against those for the purpose of personal electronic data privacy. U.S. President Obama as well as an independent review board, not to mention various organizations have decried the extent to which the NSA has expanded its surveillance. Digital privacy also has very interesting implications on the invention and future of private, digital currency. The way in which these issues and other in the realm of digital privacy in statutory and case law continue to evolve will have far-reaching implications on the lives of the private citizens of the United States. Having Privacy is a need, it is a right! So many changes have been made to help protect our rights, but so much in our technology is updating. Many laws are majorly outdated as we expand our technological fields we should also extend our laws to not only protect our privacy but also our rights. Some laws are stil being used to “protect” our privacy but these laws were created many years before having a cell phone the size of our hand was even heard of.
Benjamin Franklin once famously stated, “They who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.” Our founding fathers understood the importance of fair legal practices and essential freedoms towards optimal quality of life. To the degree in which the American people are wary of their digital conversations being under the watchful eye of the U.S. government, it is seemly inevitable that the American public will be less willing or comfortable with sharing their thoughts, ideas, and emotions, especially if they feel that it is either counter-culture or counter-government.
“Privacy is the fundamental barrier that stands in the way of complete State control and domination. And it is gradually being dismantled by laws and technologies that enable government intrusion into our emails, Internet activities, phone calls, movements, interactions and relationship. A citizenry unable to form or communicate private thoughts without the interference of the State will not only be deprived of their right to privacy, they will be deprived of their human dignity. For the ability to freely think and impart ideas is essential to who we are as human beings.” 2)
The Forth Amendment of the Constitution of the United States of America reads:
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” 3)
Questions have arisen as to how these Constitutional provisions pertain to electronic data, such as and especially computers and phones. These include whether they to be treated in the same manner as other sorts of “containers” for matters such as searching contents or seizing such devices for investigation. 4)
The Fifth Amendment of the Constitution of the United States of America reads:
“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.” 5)
One of the important questions raised by the Fifth Amendment on this topic is in regards to rights against self-incrimination. There is a question of whether an individual can be compelled by law enforcement to provide passwords for computers, cell phones, or encrypted data or whether Fifth Amendment rights can be invoked to avoid the disclosure of this information.
The Electronic Communications Privacy Act and the Stored Wire Electronic Communications Act are commonly referred together as the Electronic Communications Privacy Act (ECPA) of 1986. The ECPA updated the Federal Wiretap Act of 1968 on the issue of monitoring conversations of on phone lines, though computer and other digital and electronic communications were not addressed. However, it is important to note that the spirit of this legislation worked to ensure that public freedoms were protected. Since the passing of the ECPA, other legislation, including the USA PATRIOT Act, address these issues in a manner that in many cases eases restrictions on law enforcement access to stored and other digital and electronic communications. 6)
Often referred to as the Wiretap Act, it “prohibits the intentional actual or attempted interception, use, disclosure, or 'procure[ment] [of] any other person to intercept or endeavor to intercept any wire, oral, or electronic communication.'” 7)
Title II “protects the privacy of the contents of files stored by service providers and of records held about the subscriber by service providers, such as subscriber name, billing records, or IP addresses.” 8)
The ECPA has since been amended by legislation including the Communications Assistance to Law Enforcement Act (CALEA) in 1994, the USA PATRIOT Act in 2001, the USA PATRIOT reauthorization acts in 2006, and the FISA Amendments Act of 2008. 9)
In recent years, the U.S. Patriot Act has complicated matters. One applicable section includes Section 215. The FBI can apply “for an order requiring the production of any tangible things (including books, records, papers, documents, and other items) for an investigation to protect against international terrorism or clandestine intelligence activities” 10). This greatly expands the FBI's power “to spy on ordinary people living in the United States, including United States citizens and permanent residents” 11). The provisions in this section further cloud the issues of Constitutional rights because the FBI “need not show probable cause, nor even reasonable grounds to believe, that the person whose records it seeks is engaged in criminal activity” 12). This absolutely applies to American citizens, residents, and entities as the FBI “need not have any suspicion that the subject of the investigation is a foreign power or agent of a foreign power” 13). While the Section 215 states that an investigation requires “that such investigation of a United States person is not conducted solely upon the basis of activities protected by the first amendment to the Constitution” 14), this means that it can “investigate United States persons based in part on their exercise of First Amendment rights, and it can investigate non-United States persons based solely on their exercise of First Amendment rights. For example, the FBI could spy on a person because they don't like the books she reads, or because they don't like the web sites she visits. They could spy on her because she wrote a letter to the editor that criticized government policy. ” 15). Another part of this section stipulates that “No person shall disclose to any other person (other than those persons necessary to produce the tangible things under this section) that the Federal Bureau of Investigation has sought or obtained tangible things under this section.” 16) This means both that “those served with Section 215 orders are prohibited from disclosing the fact to anyone else” and “those who are the subjects of the surveillance are never notified that their privacy has been compromised.” 17)
This section has implications that potentially affect Forth Amendment, Fifth Amendment, and even First Amendment rights. An account of the ways that Section 215 may be unconstitutional:
“Normally, the government cannot effect a search without obtaining a warrant and showing probable cause to believe that the person has committed or will commit a crime. Section 215 violates the Fourth Amendment by allowing the government to effect Fourth Amendment searches without a warrant and without showing probable cause. The violation of the Fourth Amendment is made more egregious by the fact that Section 215 might be used to obtain information about the exercise of First Amendment rights. For example, the FBI could invoke Section 215 to require a library to produce records showing who had borrowed a particular book or to produce records showing who had visited a particular web site. Section 215 might also be used to obtain material that implicates privacy interests other than those protected by the First Amendment. For example, the FBI could use Section 215 to obtain medical records. The provision violates the First Amendment by prohibiting those served with Section 215 orders from disclosing that fact to others, even where there is no real need for secrecy. The provision violates the First Amendment by effectively authorizing the FBI to investigate U.S. persons, including American citizens, based in part on their exercise of First Amendment activity, and by authorizing the FBI to investigate non-U.S. persons based solely on their exercise of First Amendment activity. The provision violates the Fourth and Fifth Amendments by failing to require that those who are the subject of Section 215 orders be told that their privacy has been compromised.” 18)
What are key disclosure laws?
“Key disclosure laws, also known as mandatory key disclosure, is legislation that requires individuals to surrender cryptographic keys to law enforcement. The purpose is to allow access to material for confiscation or digital forensics purposes and use it either as evidence in a court of law or to enforce national security interests. Similarly, mandatory decryption laws force owners of encrypted data to supply decrypted data to law enforcement.” 19)
In the United States, there currently are no mandatory key disclosure laws, though the legal system has been set into motion for a potential conclusion on the matter. “A privacy issue has been brewing in the U.S. for years now: if the police arrest you, should they be able to snoop through your iPhone like a jealous lover? Judges across the country have come to different conclusions as to whether a search of a phone without a warrant is an unreasonable one” 20). Many states have yet to have cases on the matter decided in their state or their districts. However, there are several that have decided that your phone can be searched when you are arrested:
Seventh Circuit (Illinois, Indiana, Wisconsin): decided in US v. Flores-Lopez California: People v. Diaz Tenth Circuit (Colorado, Kansas, New Mexico, Oklahoma, Utah, Wyoming): Silvan W. v Briggs Colorado: People v. Taylor Kansas: State v. James Fifth Circuit (Louisiana, Mississippi, Texas): U.S. v. Curtis Alabama: Gracie v. State Georgia: Hawkins v. State Fourth Circuit (Maryland, North Carolina, South Carolina, Virginia, West Virginia): U.S. v. Murphy
There are also sites that have decided that police require a search warrant to search the contents of a phone:
First Circuit (Maine, Massachusetts, New Hampshire, Puerto Rico, Rhode Island): US v. Wurie Florida: Smallwood v. State Ohio: State v. Smith
“The storage capacity of today’s cell phones is immense…. That information is, by and large, of a highly personal nature: photographs, videos, written and audio messages (text, email, and voicemail), contacts, calendar appointments, web search and browsing history, purchases, and financial and medical records,’” wrote the First Circuit judges in their ruling, which put northeast states into the blue. “It is the kind of information one would previously have stored in one’s home and that would have been off-limits to officers performing a search incident to arrest.” 21) The momentum seems to have shifted in favor of policies which require search warrants to search through the data contained within phones. “The First Circuit and Florida Supreme Court issued their decisions weeks apart from each other earlier this year meaning that for a while prohibiting cell phone searches incident to arrest was clearly the minority position,” says EFF’s Fakhoury. “There’s greater momentum now.” 22)
Two Petitions regarding the issue of searching cell phones has reached the United States' highest court. The Supreme Court will review how the Fourth Amendment applies in regards to searching a cell phone incident to arrest. On July 30, 2014, Jeff Fisher filed a petition seeking review of California's decision in Riley v. California. Then, on August 15, 2014, the Department of Justice filled a petition seeking review of The First Circuit's decision in United States v. Wurie, which held that search warrants were required for most cell phone searches. 23) The U.S. Supreme Court has scheduled these cases to be argued on Tuesday, April 29, 2014 which will set a precedent for the entire nation to follow. 24)
People in recent years have become no less concerned for there privacy relative to the past. This is especially true in the western hemisphere. The contemporary form this concern takes is protection of smartphones(see Key Disclosure Laws).
With land-line phones, such as household phones, there is no form of encryption and the legality of tapping such phones has been repeatedly established25) 26). In the United States this is a very well defined issue. Authorities are allowed to tap a person's phone lines if and only if they first acquire an appropriate warrant. This general standard was established in the Foreign Intelligence Surveillance Act, which has been amended several times in the last decade.
With smartphones, a distinction exists across brands making the legality of “wiretapping more” complex. Cellphone calls can indeed be intercepted just as land line phone calls can, and this too falls under law enforcement jurisdiction. Smartphones however, have the potential to hold a wealth of information about their owners and others not as easily accessible, and in a manner less well-defined. A person's phone may hold information via applications and notes that said person would not or could not normally convey over a phone call, such as personal photographs or videos as well as messages sent. This leads to a new controversy of the legality of unlocking a confiscated smartphone.
In the United States, the police can currently legally unlock a person's smartphone to access the data within without the use of a warrant. The majority of smartphone users use either an Apple product or an Android. The difference in the policies of the respective companies has lead to a difference in modus operandi in regards to police circumventing a person's personal security measures. For Apple products, police can, with documentation granted by a judge, request a person's password in order to bypass the lock screen on said person's smart phone. With current laws, Apple is obligated to give up the aforementioned password. Android does not keep the same data and so law enforcement agencies instead may seek a password reset on a user's account.
These practices are legal, which is a source of controversy. An additional tool available to law enforcement is the software XRY, developed by Swedish Firm Micro System. It allows law enforcement agencies to “jailbreak” a device and then systematically guess the device's passcode via trial and error, also known as a 'brute-force' method. This process can take less than two minutes. 27)
Ross William Ulbricht has been indicted on charges that he operated the billion-dollar Silk Road website where customers used Bitcoins to buy and sell drugs 28). It is thought that the Silk Road case will have a profound effect on setting legal precedent in the intersecting areas of compulsory key disclosure and the Fifth Amendment. This will also serve to have a large effect on the viability of digital currency. If officials of the government of the United States prove unable of seizing this type of currency, it would be a substantial boost to this sort of currency. 29)
The Silk Road Case is a high profile case, these cases tend to make or change laws. The case helps answer some questions that could not be addressed before about regulating/ intruding on the internet. Tor users were being automatically surveillance and automatically watched as they were assumed to be doing something illegal. Ross was the first website host to be convicted for actions done on his website (the crimes range from money laundry to 5 hit-men to commit murders). 30)
This case brought up the legal question of whether a website operator can be held accountable for how his site is used by others but also how the government ferrets out illegal Internet activity. Who is responsible for what on line? A major point which is still discussed to this day, anonymity is clearly not present on the internet. 31)
The Fifth Amendment rights against self-incrimination can be relevant to this and any other case where forcing an individual to disclose passwords or other keys in order to access digital property or private information. By revealing such such property or information or the fact of ownership of such property or information, it may constitute self-incrimination.
It seems that our society is moving increasingly towards “absolute financial surveillance” 32). However, having a currency whose value and transaction history that are protected from government seizure and surveillance might have a large say in that present trajectory. How mandatory key disclosure will be handled by law in different jurisdictions will shape the direction in this area. Because of how much digital information has become a part of the life of the average citizen and with it the cryptography that protects that information, it very well could become “the single defining issue for liberty in the digital age.” 33) Upholding the Fifth Amendment rights against self-incrimination in relation to digital property and private information will be an increasingly important topic as these become ever more significant. Government seizure of assets often times leaves defendants without the means to adequate legal representation; having a protected currency could serve to prevent the abuse of Constitutionally-protected due process. There are often abuses of civil asset forfeiture that could be mitigated by private currency practices. Even if the government could access Bitcoin property in civil or criminal matters, the tracking of this currency would make it harder for any impropriety, a boon for society overall. 34) Financial privacy in many regards would be bolstered, including retirement and inheritance instructions. 35)
Late in 2013, The Privacy and Civil Liberties Oversight Board (PCLOB), a group led by former security officials and academics 36) was tasked with reviewing the practices of the NSA. It found that the National Security Agency’s program of collecting phone records is unfounded in the law and should end. It found that Section 215 of the USA Patriot Act “does not provide an adequate basis to support this program.” The board extensively analyzed the surveillance organization including its legal, constitutional, and practical aspects. The board's 238-page report drew the conclusion that the program raises serious threats to civil liberties, has shown limited value in countering terrorism and is not sustainable from a policy perspective. “We have not identified a single instance involving a threat to the United States in which the telephone records program made a concrete difference in the outcome of a counter terrorism investigation. Moreover, we are aware of no instance in which the program directly contributed to the discovery of a previously unknown terrorist plot or the disruption of a terrorist attack.” 37)
But the board found that it is impossible that the billions of records collected daily could be relevant to a single investigation “without redefining that word in a manner that is circular, unlimited in scope.” It was found that these records required phone companies to disclose generated call data on a daily basis, “an approach lacking foundation in the statute…At its core, the approach boils down to the proposition that essentially all telephone records are relevant to essentially all international terrorism investigations,” the report said. This approach, it said, “at minimum, is in deep tension with the statutory requirement that items obtained through a Section 215 order be sought for ‘an investigation,’ not for the purpose of enhancing the government’s counter terrorism capabilities generally.” 38)
Constitutional issues were also raised with regard to U.S. citizens’ rights of speech, association and privacy. “The connections revealed by the extensive database of telephone records gathered under the program will necessarily include relationships established among individuals and groups for political, religious, and other expressive purposes. Compelled disclosure to the government of information revealing these associations can have a chilling effect on the exercise of First Amendment rights.” 39)
The board reviewed 12 terrorism cases which involved data collected by the NSA and showed that there was very little to no benefit gained by the surveillance program. In these cases, the data was “generally limited to corroborating information that was obtained independently by the FBI,” the report said. The board refuted the often-cited contention that the program would have allowed the knowledge of Khalid al-Mihdhar, an al Qaeda terrorist, being in the United States prior to the September 11, 2001 terrorist attacks. “The failure to identify Mihdhar’s presence in the United States stemmed primarily from a lack of information sharing among federal agencies, not of a lack of surveillance capabilities…This was a failure to connect the dots, not a failure to collect enough dots.” 40)
At the very least in the case of the NSA surveillance program, the harms to society far outweigh any benefits, according to the experts taking part in its review. “The Board believes that the Section 215 program has contributed only minimal value in combating terrorism beyond what the government already achieves through these and other alternative means. Cessation of the program would eliminate the privacy and civil liberties concerns associated with bulk collection without unduly hampering the government’s efforts, while ensuring that any governmental requests for telephone calling records are tailored to the needs of specific investigations.” 41)
“The Board believes that the Section 215 program has contributed only minimal value in combating terrorism beyond what the government already achieves through these and other alternative means,” the report said. “Cessation of the program would eliminate the privacy and civil liberties concerns associated with bulk collection without unduly hampering the government’s efforts, while ensuring that any governmental requests for telephone calling records are tailored to the needs of specific investigations.” 42)
In 2014 Obama revealed that someone will still collect records of the numbers and times of phone calls by every American. Access to these records will be restricted and will be changed from the NSA to elsewhere. The movement of this information caused many (including congress) to believe that Obama failed to go further in the sense of intelligence-gathering reform since his placement in office. Obama reveled new guidance for information gathering in which he called “the nation's vital security needs with concerns over privacy and civil liberties”. These changed would change the collection of information (in particular phone records) by the NSA. The president also commented on a major security question about surveillance on ordinary people “The United States is not spying on ordinary people who don't threaten our national security, unless there is a compelling national security purpose, we will not monitor the communications of heads of state and government of our close friends and allies”. Most of the changes to the NSA process were inspired by concern of privacy and liberty rights. 43)
In 2015 President Obama made another statement about rule changes to the NSA. New rules include: • Intelligence analysts will be required to immediately delete some private communications data of Americans that are collected “incidentally” during foreign surveillance sweeps—as long as that information is deemed unnecessary to keep for security purposes. Similar data collected about foreigners will also be destroyed, but within five years. • The administration will begin allowing secretive national security letters, which are used to compel companies to hand over communications data or financial records of certain users for the purposes of a national security investigation, to be disclosed publicly after three years. These new changes are meant to set somewhat of a limit the NSA on spying. 44)
On January 28, 2014, President Barack Obama gave a State of the Union address in which he promised reforms of the U.S. government's surveillance programs. “[W]orking with this Congress, I will reform our surveillance programs—because the vital work of our intelligence community depends on public confidence, here and abroad, that the privacy of ordinary people is not being violated,” the president told the nation. President Obama is working on reforms to the National Security Agency that will limit the scope of information that it can collect and not allow the NSA to have immediate access to phone records but rather require warrants for these records. 45)
At the 23rd session of the UN Human Rights Council, the UN Special Rapporteur on freedom of opinion and expression, Frank La Rue, released his latest report which was intended as an analysis of the implications of States’ surveillance of communications on the exercise of the human rights to privacy and to freedom of opinion and expression. The report covers a number of issues, including lack of judicial oversight, unregulated access to communications data, mandatory data retention, exceptions for national security, identity disclosure laws, restrictions on encryption and key disclosure laws, extra territorial application of surveillance laws and extra-legal surveillance.
“If the US government – bound by the world’s most well-tested constitutional protections, reinforced by rigorous congressional oversight, buttressed by an independent judiciary – is secretly spying on its citizens, what can we expect from any other government? What does that say about the veracity and accountability of public figures if the head of the National Security Agency during testimony to Congress avoids mentioning this significant data gathering exercise and then lies to the press? It was only few weeks ago when General Keith Alexander, head of the NSA, told Reuters that 'the great irony is we’re the only ones not spying on the American people'.”
Privacy International, with support from APC and the Norwegian Ministry of Foreign affairs, held a side-event at the HRC to discuss issues raised by the Special Rapporteur is his report. Most notably, the report emphasized that surveillance must be subjected to the oversight of independent mechanisms before it is conducted. The implication is that, without safeguards protecting private communications from the intrusion of State actors, the important democratic tenets of individual autonomy and freedom of speech. Judicial authorization by independent and impartial tribunals is an essential prerequisite to surveillance. Courts must be accessible and their decisions open to the scrutiny of the public. In this sense, secret courts are completely deficient and incapable of playing an effective oversight role and fail to provide a fair and open administration of justice. If the way governments interpret the law, and the manner in which they execute it, is secret, then the law in effect is secret.
APC and Privacy International, as part of a coalition of more than 90 civil society organizations and individuals, presented a joint statement to the Human Rights Council, addressing the PRISM/NSA case and calling on the HRC to act swiftly to prevent the creation of a global Internet based surveillance system by: 1. convening a special session to examine this case 2. supporting a multistakeholder process to implement the recommendation of Mr La Rue that the Human Rights Committee develop a new General Comment 16 on the right to privacy in light of technological advancements; and 3. requesting the High Commissioner to prepare a report that: 1. formally asks states to report on practices and laws in place on surveillance and what corrective steps will they will take to meet human rights standards, and, 2. examines the implications of this case in in the light of the Human Rights Council endorsed United Nations Guiding Principles on Business and Human Rights, the “Protect, Respect and Remedy” Framework of A/HRC/RES/17/4.46)
The ACLU strives to protect the privacy of American citizens and so provides information on how Americans can conceal their metadata from prying government eyes. The ACLU does not condone breaking the law, but wishes for Americans to be protected by the Fourth and Fifth Amendments as they exist now. The ACLU is seemingly on the side of less government authority based on their published articles. However, the organization has not released a statement as to whether or not it would support rulings favoring the inclusion of electronic devices in current warrants, or whether they should require newer, more more strict regulation in regards to law enforcement authority. 47)
The ACLU also has many campaigns to help protect our privacy for example the “dotRights”. This campaigned as is explained by the ACLU will “focus on updating and expanding privacy laws to include new developments in technology, so that the government has the same restrictions on access to American’s private, personal information online as they do offline”. The ACLU focuses on keeping the public educated and also trying to expand and update laws to help privacy rights. 48)
Being educated on how the government practices surveillance is very important. According to the ACLU our surveillance has greatly expanded since 9/11 with the Patriot act and the FISA Amendments Act (FAA). The government is actively tracking down and spying hundreds of millions of American through all of our communication devices (ex. Calls, text messages and emails. 49)It is best to always be informed of our rights and to educate others.
Roy Olmstead, a suspected bootlegger, unwittingly had wiretaps in the basement of his building, where he had an office, and in the streets near his home. The wiretaps were installed without judicial approval. Olmstead was convicted with evidence obtained from the wiretaps, despite the fact that the wire-tapped conversations were illegally obtained, for conspiracy to violate the National Prohibition Act. It was found that neither Olmstead's Fourth nor Fifth Amendment rights were violated. It was held that it was not in violation of the Fifth Amendment because he voluntarily made those conversations and was not made to conduct those conversations in any way. It was also held that Olmstead's Fourth Amendment rights were not infringed because wiretapping does not constitute a search and seizure under the meaning of the Fourth Amendment. Instead, search and seizure would refer to actual physical examination of one's person, papers, tangible material effects, or home, not their conversations. The court held that even though the wiretapping may have been unethical, no court may exclude evidence solely for moral reasons. This case was later reversed by Katz v. U.S. (1967). 50)
Charles Katz was suspected of transmitting gambling information over the phone to clients in other states. Federal agents attached an eavesdropping device to the outside of a public phone booth used by Katz. Katz was convicted for illegal transmission of wagering information based on recordings of Katz's end of conversations with his clients. The Court of Appeals rejected Katz's assertion that the conversations could not be used against him, noting that the recording device was not placed within the phone booth itself. The case went to the Supreme Court where they decided that the Fourth Amendment protection against unreasonable searches and seizures extended to require the police to obtain a search warrant in order to wiretap a public pay phone. The Court's holding included that the conversations were protected by the Fourth Amendment and that a physical intrusion into the area he occupied was unnecessary to bring the Amendment into play. “The Fourth Amendment protects people, not places,” wrote Justice Potter Stewart for the Court. Justice John Marshall Harlan argued the idea of a “reasonable” expectation of Fourth Amendment protection. 51)
On November 3, 2006, the Miami-Dade Police Department received a tip that the home of Joelis Jardines was being used to grow marijuana. On December 6, 2006, two detectives and a trained detective dog approved the private residence. The team approached the from door and the dog signaled that it detected the scent of narcotics. The detective also smelled marijuana. The detective then applied for a search warrant, which was approved. The search confirmed that marijuana was being grown inside the home. Jardines was arrested and charged with trafficking, he then tried to suppress the evidence seized at his home on the theory that the drug dog's sniff was an impermissible search under the Fourth Amendment. . The state appealed the suppression ruling and the state appellate court reversed, concluding that no illegal search had occurred since the officer had the right to go up to the defendant's front door and that a warrant was not necessary for the drug dog’s sniff. Florida Supreme Court reversed the appellate court's decision and concluded that the dog's sniff was a substantial government intrusion into the sanctity of the home and constituted a search within the meaning of the Fourth Amendment. The Court held that the front porch of a home is part of the home itself for Fourth Amendment purposes. Entering a person’s porch for the purposes of conducting a search requires a broader license than the one commonly given to the general public. Without such a license, the police officers were conducting an unlawful search in violation of the Fourth Amendment.52)
CompTel, a trade association that represents some of AT&T;'s competitors filed a request, seeking documents related to an FCC probe into whether AT&T; had overcharged the agency for work on a technology education project. AT&T fought these request stating that they were private and that it would be invasion of “private property” The FCC rejected AT&T;'s argument, but in September 2009, the U.S. Court of Appeals for the Third Circuit held that the phrase “personal privacy” applied to corporations because other sections of FOIA had defined “person” as a corporation. The Supreme Court reversed the lower court decision in a unanimous opinion. The court held that corporations do not have a right of personal privacy that would protect them from the disclosure of public records that have been handed over to federal agencies. 53)
“John Doe” was part of a child pornography investigation. He had had laptop computers and external hard drives seized. The contents were encrypted. Doe was ordered to appear before a grand jury and to produce the unencrypted contents of the laptops and hard drives. Doe refused to decrypt the hard drives before the grand jury, citing Fifth Amendment privilege, stating that the Government’s use of the decrypted contents of the hard drives would constitute use of his testimony. It was found that decrypting the contends would be a testimonial act of production made possible by the contents of Doe's own mind. Even if the decryption and production would not have been incriminatory, they were a “link in the chain of evidence” that was designed to lead to incriminating evidence. The conclusion was that the the Fifth Amendment protection extends to provide privilege against decrypting and producing contents of media devices.
Judge Tjoflat ruled that the act of Doe’s decryption and production of the contents of the hard drives would sufficiently implicate the Fifth Amendment privilege. This holding was reached on two counts: (1) Doe’s decryption and production of the contents of the drives would be testimonial, not merely a physical act; and (2) the explicit and implicit factual communications associated with the decryption and production are not foregone conclusions. 54)
February 10, 2010 Ramona Fricosu was ordered by the federal court to release her password to decrypt a computer hard drive. Fricosu argued that this violated her fifth amendment rights. Fricosu was arrested for bank- fraud in a mortgage scam. Fricosu’s lawyer, Philip Dubois, is also considering adding charges that her fourth amendments rights have also been violated. He considers this “a better argument for us and for the general public.”With all the controversy surrounding rights of search and seizure when it comes to electronics it becomes apparent that the laws, as they are now, are forever shrowded in a shade of grey of which many people man maneuver their way around. In 2012 (get the date!) Ramona Fricosu was arrested along with her husband at the time for mortgage and real estate fraud. The federal court ordered Fricosu to release her password to her gather the information need to prosecute her fully. 55) This posed an interested situation. In essence the 5th Amendment protects people from incriminating themselves. For Fricosu to release the information, her lawyers argued, would be a violation of her 5th Amendment rights. The question them becomes at what do you loose protection of your rights. In this case in particular the judge decided to bypass her password and asked for a the unencrypted version of her hard drive. By doing this Fricosu would unlock her computer and hand it over to the authorities to so that her hard drive could be copied. The precedent for such an action was set in 2006 when during a border crossing search a man was asked to do the same thing. 56)
These historical cases have affected and have helped mold our laws to help protect our rights. Many times there is ways around laws or loop holes, cases like these help us adjust or add laws so that our rights are protected. Cases like these are significantly important to the expansion of our laws, the down side is that many times incidents like this have to happen in order to achieve any changes. Invasion of privacy is a very common problem especially when it comes to investigations, most of these cases involve some sort of invasion. In the case of Olmstead v. United States (1928) we can see the invasion of privacy was not really taken into account while in Katz v. United States (1967) this law was switch since the information taken by katz was necessary to close the case. These laws are changing slowly but as we can see they change when it will benefit one party in this case the federal government, and how far are these laws protect us?
It is no secret that, as a demographic, today's youth are undoubtedly tech savvy. It is reasonable to expect that in the future technology will become more complex and with it laws. There will undoubtedly then, be young people represented in court redefining the fourth and fifth amendment as it relates to progressive technology.
Thus far, the fourth amendment has been slackened regarding American citizens under the age of eighteen via court rulings which have redefined “probable cause” as “reasonableness” in regards to public schools. 57)
The Foreign Intelligence Surveillance Court has granted the government’s motion to limit access by the NSA to the bulk telephone records provided by US telephone companies. Under the new rules, the government cannot “query” the telephone metadata until after the court finds that there is a “reasonable, articulable suspicion that the selection term is associated with” a terrorist organization. These rules also limit query results to telephone numbers within “two hops” of the selector. President Obama announced the new legal requirement during his recent speech on surveillance reform, when he committed to end the NSA’s bulk record collection program. The NSA's authority to force US telephone companies to turn over records on all their customers will expire on March 28th. The President has recommended that the Intelligence Community and the Attorney General propose an alternative to the bulk collection program prior to that deadline. 58)
Senator Rand Paul (R-Ky) introduced the Fourth Amendment Preservation and Protection Act of 2013, which would prohibit the warrantless collection of information about individuals held by third parties. The law would overturn the “third party doctrine,” which has been widely criticized by courts and legal scholars. The bill has been referred to the Senate Judiciary Committee.” 59)
In an effort to keep up with the ever expanding advances in decryption, “the National Security Agency is racing to build a computer that could break nearly every kind of encryption used to protect banking, medical, business and government records around the world.” 60) The NSA is working on a quantum computer as part of a $79.7 million research program that would work towards breaking the most sophisticated of encryption. “With such technology, all forms of public key encryption would be broken, including those used on many secure Web sites as well as the type used to protect state secrets.” 61) “The basic principle underlying quantum computing is known as 'quantum superposition,' the idea that an object simultaneously exists in all states. A classical computer uses binary bits, which are either zeroes or ones. A quantum computer uses quantum bits, or qubits, which are simultaneously zero and one.” 62) “If you think you understand quantum mechanics, you don’t understand quantum mechanics,” said the late Nobel laureate Richard Feynman, who is widely regarded as the pioneer in quantum computing. 63) “Quantum computers are extremely delicate, so if you don’t protect them from their environment, then the computation will be useless,” said Daniel Lidar, a professor of electrical engineering and the director of the Center for Quantum Information Science and Technology at the University of Southern California. 64) “In 2009, computer scientists using classical methods were able to discover the primes within a 768-bit number, but it took almost two years and hundreds of computers to factor it. The scientists estimated that it would take 1,000 times longer to break a 1,024-bit encryption key, which is commonly used for online transactions. A large-scale quantum computer, however, could theoretically break a 1,024-bit encryption much faster. Some leading Internet companies are moving to 2,048-bit keys, but even those are thought to be vulnerable to rapid decryption with a quantum computer. Quantum computers have many applications for today’s scientific community, including the creation of artificial intelligence. But the NSA fears the implications for national security. 65)
Related to key disclosure, there is controversy surrounding the fourth and fifth amendment and how they relate to private currencies, such as Bitcoin. This controversy stems from the fact that while data such as encryption passwords may be confiscated legally by law enforcement, when it comes to digital currency, data and value are often interlocked. Due to this, the confiscation of one's passwords and transaction history may double as the confiscation of wealth. 66)
The concept of private currency does not inherently cause complication with the interpretation of the fourth and fifth amendment. By definition, a private currency is a currency issued by a private organization, be it a commercial business or a nonprofit enterprise. 67) Cryptocurrencies, like Bitcoin, currently all fall into this category prompting a politically relevant relationship between private currency and privacy rights. Cryptocurrency, for the above mentioned reasons, does raise interesting complications when it comes to the fourth and fifth amendment.
The issue is not only hypothetical. Notable cases include the respective arrests of “JFL” and Oliver Drage. The former was incarcerated for failing to disclose his decryption keys while the latter was jailed for failing to disclose an encryption password to authorities.
These cases could be argued as violation of the fourth amendment to the United States Constitution. While laws differ between the United States and the United Kingdom, cryptocurrencies are global in that they exist only online and may be used anywhere that an internet connection is available. As such, there is the potential argument that cryptocurrency should be handled with the same legal procedure everywhere it is accepted. The counterargument to this is that a currency's acceptance does not legalize all interactions in which it is used.
An arrest similar to that of Oliver Drage's would potentially constitute a violation of the fourth and possibly fifth amendment in the United States due to laws against seizure and self-incrimination. Because Bitcoin exists only in digital form as transactions, seizure of a Bitcoin owner's passwords and transaction history is seizure of their Bitcoin assets. If a law enforcement agency possessed only a warrant for one or the other, they should hypothetically not have the legal proceeding to seize either.
Another potential side-effect of the seizure of private currencies is the unprecedented lowering of value. Because cryptocurrencies are relatively new and backed privately, their value can fluctuate greatly. The legality of these currencies has yet to be overly well-defined and so investigations are sometimes made. These legal complications themselves can lower the value of these currencies in an arguably unwarranted way. Because cryptocurrencies are not widely used relative to fiat currencies, several individuals own large portions of the current cryptocurrency available. Because law enforcement agencies in some countries, namely the United Kingdom, Australia 68) and Africa 69) possess the power to search and simultaneously seize cryptocurrency, they have power over a large portion of the crypto-economy.