Weighing the Costs of Privacy and Security

Security. For most people, this means putting their money in a bank, having basic home security, and their birthday as passwords on their computer. A simple concept, which for the most part is inexpensive.

However, on a national scale, security becomes prohibitively expensive. Not only because of money, but rather because of the cost to citizens’ privacy and liberty. These costs were emphasized when, in the wake of the San Bernardino terror attack, the Department of Justice (DOJ) demanded that Apple should create a program which would allow the DOJ to access the information in San Bernardino terrorist’s phone under the All Writs Act of 1789.1 When Apple refused, the DOJ won a federal suit to compel Apple to produce such a program.2

This particular request is almost unrivaled in its audacity compared to previous advances by the United States Government.3 While national security is vital to our nation’s interests, this grab at power by our government ups the ante. It does not only limit private citizens, corporations, and entities in a preventative sense, but rather forces them to act.

There are three problems with this. First, providing the government with access to anyone’s private phones, computers, and documents at any time may violate the Fourth Amendment.4 Second, to force a citizen or entity to act affirmatively can violate their basic freedom and liberty under the First and Fifth Amendments.5 Finally, when an executive branch gets to decide what can be demanded from a citizen in the name of homeland security judicial oversite is limited.6 The only remaining question would then be what can your country request/demand from you. If you ask Stalin or Mussolini, a lot.

Until now, and even with the recent policy decided in Sebelius7, the government could only compel private citizens to act in very limited circumstances. However, compelling private entities to create and do things as the government wishes, is a vastly enlarged scope of government power with untold realities. Of course, anything done will be in the name of national security and the United States’ interest. However, the key phrase is “national” security. Essentially, this is for the “greater good”, not the personal citizen. Further, everything has a good reason and a real reason, all the government needs to put forth to compel citizen action under rational basis is the good reason.

Also, as evidenced by the debacle between Edward Snowden and the NSA,8 once the government has power it cannot be blatantly assumed that the government will use such power appropriately and fairly. If the government would be able to compel entities to produce programs, what else can the government compel? Can the government demand every citizen register and produce the keys and passwords to their home, car, personal locker, computer and phone “just in case” the government needs to enter? True, in this instance, this request was part of an investigation proceeding, but this was not a request which specifically applied to that security situation, this request encompassed the privacy of millions of users. Further, it demanded that Apple affirmatively act.

However, in conclusion, one has to wonder based on the amount of access millions of users sign away on phone contracts and signing up for the latest apps, how much we as a society value our privacy, and therefore, how much such privacy concerns should weigh against our national security needs.


Google recently enhanced its search engine functionality so that a user’s personal information from Gmail, Google Calendar, and Google+ are utilized to generate user-specific answers to personal questions such as “When is my flight leaving?” or “What time is my reservation?”[1] The feature is available on any device on which Google search is available.[2] Although Google claims this feature to be their most innovative yet, it is likely to be in violation of the Federal Wiretap Act.[3]

Google launched its personalized search tool in 2004.[4] At that time, the function used the individual’s Google search history to come up with results that were most relevant to the user’s particular interests.[5] In 2005, the company began ranking search results based on cumulative data of personal behavior collected from all users.[6] In 2009, social media data was also integrated into Google search,[7] and, since August 2013, Google search has been able to pull information from users’ personal accounts to offer the most relevant and individualized results for them.[8] The company explains that it collects the data by embedding cookies and anonymous identifiers to the users’ devices and claims that the right to do so had been added to the privacy policy to which all Google users must agree.[9]

This new privacy policy does not allow consumers to keep their information in separate accounts in a practical manner.[10] Enrollment in the comingling of all services is automatic, while opting-out all at once is not available.[11] Even when the users opt-out from the data collecting services for all accounts one by one, cookies embedded in their devices do not become deactivated.[12]

Since the feature is fairly new, it has not yet been subject many complaints. But, in September 2013, a federal judge in California allowed a consolidated wiretapping action to proceed against Google in conjunction with their previous data collecting policies from Gmail accounts.[13] In this ongoing case, plaintiffs allege that Google “intentionally intercepted, read and acquired content” from their emails, for the purposes of targeted advertising.[14]

Google filed a motion to dismiss, asserting that the scanning of emails was within the exception of the “ordinary course of business”[15] and that the users consented to the company’s activities by accepting its privacy policy.[16] However, the Court dismissed Google’s motion, holding that data collection, for the purposes of targeted advertising, does not constitute “ordinary course of business” for an email account provider, and merely adjusting the privacy policy does not mean that the users have “explicitly” or “implicitly” consented to the access to their accounts.[17]

Since Google’s new search feature furthers the amount of intrusion into the users’ private information, the company may have subjected itself to increased liability, based on the outcome of this ongoing case.[18]

[1] Jolie O’Dell, Google’s big brain now includes your calendar, tracking numbers, and more, Venture Beat (Aug. 14, 2013, 11:00 AM),


[2] Id.

[3] See 18 U.S.C. § 2511 (2013).

[4] Elinor Mills, Google automates personalized search, CNET (Jun. 28, 2005, 1:53 PM), http://news.cnet.com/Google-automates-personalized-search/2100-1032_3-5766899.html.

[5] Id. (explaining that, for example, searching the word “bass” would lead to results related to fish for someone who had previously searched fishing terms on Google, and results related to musical instruments for someone who had previously searched terms related to music).

[6] Eugene Agichtein et al., Improving Web Search Ranking by Incorporating User Behavior Information, SIGIR ’06 19, available at http://web.cs.dal.ca/~anwar/ir/review/grads.pdf (last visited Oct. 23, 2013) User behavior data consists of scrolling time in each search term, dwelling time on each link and reformulation patterns of search terms until the user gets the desired result.

[7] Sarah Kessler, Why Google’s Social Search Is Too Much, Too Soon, Mashable (Jan. 13, 2012), http://mashable.com/2012/01/13/google-social-search-too-much-too-soon/. A search for a name would return a result of someone that is already in the user’s social network, rather than many strangers with the same name.

[8] See O’Dell, supra note 1.

[9]  See Privacy Policy, Google (June 24, 2013), http://www.google.com/policies/privacy/.

[10] Complaint at 62, Hoey v. Google, Inc., No. 12-cv-01448 (E.D. Pa. filed Mar. 22, 2012), available at http://www.courthousenews.com/2012/03/26/Goog.pdf.

[11] Id.

[12] See Demand for Jury Trial, Yngelmo v. Google, Inc., available at http://www.technologyreview.com/sites/default/files/legacy/yngelmo_v_google.pdf (last visited Oct. 26, 2013).

[13] Mathew J. Schwartz, Google Wiretapping Lawsuits Can Proceed, Judges Say, InformationWeek (Oct. 2, 2013, 1:32 PM), http://www.informationweek.com/security/privacy/google-wiretapping-lawsuits-can-proceed/240162124.

[14] See Order Granting in Part and Denying in Part Defendant’s Motion to Dismiss, In Re: Google, Inc. Gmail Litigation, No. 13-MD-02439-LHK (N.D. Ca. filed Sept. 26, 2013), available at https://www.documentcloud.org/documents/799772-google-class-action.html.

[15] Id. at 12.

[16] Id. at 22.

[17] See id. at 22, 28.

[18] See id.; Schwartz supra note 14.

To Search or Not to Search: GPS Tracking and the Fourth Amendment, an Analysis of U.S. v. Jones

The Supreme Court recently decided in United States v. Jones that placing a global positioning system (“GPS”) on a defendant’s car over a four week period constituted a “search” under the Fourth Amendment and thus required a valid search warrant.[1] Although the Court was unanimous in its decision, the Court was split on why this Defendant’s GPS tracking by the state was considered a search under the Fourth Amendment.[2]

Justice Scalia who wrote the majority opinion analyzed whether the defendant was protected under the Fourth Amendment and had an expectation of a proper search based on a trespass theory of property rights.[3] In the case at bar, the Defendant owned the automobile when the state installed the GPS unit under the car.[4] Although Scalia states that in later cases “we have deviated from that exclusively property-based approach,”[5] he is referring specifically to Katz v. United States.[6] In Katz Justice Harlan’s concurrence said that a “violation occurs when government officers violate a person’s reasonable expectation of privacy.”[7] The government in the present case contended that the Defendant did not have an expectation of privacy because the automobile’s GPS only tracked the car in locations that were public. Scalia explains that the government’s contentions did not have to be addressed since the Defendant’s “fourth amendment rights [did] not rise or fall with the Katz formulation.”[8] Additionally, Scalia expressed that the “Katz reasonable-expectation-of-privacy test has been added to, not substituted for, the common-law trespassory test.”[9] The fact that the jeep was owned by the Defendant when the government decided to attach the GPS tracking unit to the defendant’s car was trespassory and even though the Defendant might not have a general expectation of privacy when an automobile is in a public location, guarantees against unreasonable searches and seizures of citizen’s property was the minimum protection that the Fourth Amendment afforded when it was adopted.[10]

On the other hand, the concurrence championed by Justice Alito suggests a different approach then the general adherence to the property theory of unreasonable searches and seizures espoused by Justice Scalia.[11] Alito suggests that a modified version of the Katz expectation-of-privacy test should be applied when analyzing if a search is considered to fall under the protection of the Fourth Amendment.[12] He states that the “trespass-based rule was repeatedly criticized,”[13] and that as established in United States v. Karo, “when addressing the relevance of a technical trespass, ‘an actual trespass is neither necessary nor sufficient to establish a constitutional violation.’”[14] “The existence of a property right is but one element in determining whether expectations of privacy are legitimate.”[15] Alito further recommends that in circumstances involving changing technology, the best solution for privacy concerns might be legislative.[16] A legislative body is well situated to gauge “changing public attitudes, to draw detailed lines, and to balance privacy and public safety in a comprehensive way.”[17]

Therefore, until this occurs, the best that Alito feels the Court can do in order to balance privacy and public safety needs is to “ask whether the use of GPS tracking in a particular case involved a degree of intrusion that a reasonable person would not have anticipated.”[18] Under his approach, short-term monitoring using GPS technologies to monitor defendants in public streets would be acceptable, while long-term monitoring would impinge on expectations of privacy.[19] In the present case, 4 weeks would be considered too long of a search.[20] In other cases where uncertainty exists regarding whether the period of GPS surveillance constituted a Fourth Amendment search, the police according to Alito “may always seek a warrant.”[21]

Overall, both Justice Scalia and Justice Alito both agree that the Defendant’s Fourth Amendment rights were violated and that the court of appeals correctly reversed the district courts verdict. However, their rationales for arriving to the Court’s ruling will leave future cases in doubt regarding which test to follow when the government conducts GPS surveillance on future defendants. One is founded in the common-law theory of property rights while the other opinion tries to strike a balance between both the state’s interests for safety and the citizen’s right of privacy. Going forward there still is no clear test regarding whether tracking technologies will be subject to Fourth Amendment scrutiny when implemented by the state without a warrant.

[1] United States v. Jones, 132 S.Ct. 945, 946 (2012).

[2] See id. at 953.

[3] Id.

[4] Id. at 952.

[5] Id. at 950.

[6] Id.

[7] Id. (citing Katz v. United States, 389 U.S. 347, 351 (1967) (Harlan, J., concurring).

[8] Jones, 132 S.Ct. at 950.

[9] Id. at 952.

[10] Id. at 953.

[11] Id. at 958.

[12] See id. at 964.

[13] Id. at 959.

[14] Id. at 960 (citing United States v. Karo, 468 U.S. 705, 713 (1984)).

[15] Jones, 132 S.Ct. at 960 (citing Oliver v. United States, 466 U.S. 170, 183 (1984)).

[16] Id. at 964.

[17] Id.

[18] Id.

[19] Id.

[20] Id.

[21] Id.

United States v. Jones and the Shortcomings of Originalist Interpretations of the Fourth Amendment

In United States v. Jones, a GPS tracking device was the focal point of the Fourth Amendment issues in that case.[1] Antoine Jones was a nightclub owner who was suspected of running a drug trafficking ring.[2] A warrant was issued authorizing the installation of a GPS tracking device on a car used by Jones within ten days and within the District of Columbia.[3] The device was installed on Jones’ car in Maryland eleven days after the issuance of the warrant.[4] The data from the device linked Jones to a location where drugs and money were found and resulted in a guilty verdict.[5] The D.C. Circuit reversed the conviction due to the fact that the GPS location data was obtained without a valid warrant.[6]

The Court affirmed the judgment of the D.C. Circuit holding that the “installation of a GPS device on a target’s vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a ‘search.’”[7] In reaching that conclusion, Justice Scalia noted that there was a “physical intrusion” by placing the GPS device on Jones’ car.[8] The installation of a GPS device on a vehicle constituted a trespass of property consistent with the original understanding of the Fourth Amendment.[9] Thus, evidence gathered from a GPS device without a proper warrant would be inadmissible in court.

In dicta, Justice Scalia noted that without physical intrusion, visual surveillance would be permissible.[10] He posited that it would have been permissible if Jones had been tracked via “traditional surveillance techniques” involving a multitude of investigators because there is no expectation of privacy on the roads.[11] In requiring physical trespass and employing eighteenth century understandings of search and seizure to define Fourth Amendment protections, Justice Scalia reveals the shortcomings of originalism.[12]

Justice Sotomayor wrote in a concurring opinion that “physical intrusion is now unnecessary to many forms of surveillance.”[13] Law enforcement can use devices such as cellular phones, to track the movements of individuals without physical trespass.[14] Some cellular phone carriers collect and retain location data from phone usage through cell towers, creating a historical record of the user’s movement.[15] Location data can be collected through GPS hardware pre-installed in the phones.[16] While mobile carriers do not retain GPS location data, third parties may have historical location data through “check-in” apps available for smartphones.[17] It is also possible to actively track a phone through “pings” from the cellular carrier.[18] None of the above methods involve a physical intrusion of property; under an originalist understanding of the Fourth Amendment such surveillance without a warrant would be permissible.[19]

Currently, customer records can be disclosed to investigators pursuant to the Electronic Communications Privacy Act of 1986 (ECPA).[20] Under the ECPA, law enforcement only needs to show a court “reasonable ground[s] to believe that the . . . [data] sought, [is] relevant and material to an ongoing criminal investigation” to obtain records from mobile providers.[21] Taking advantage of a requirement much lower than the Fourth Amendment’s “probable cause,” electronic surveillance using cellular phones have increased greatly in recent years.[22] The Court was correct in Jonesby holding that the warrantless gathering of evidence from a GPS tracking device was improper. However, abiding by an originalist definition of Fourth Amendment protections may open doors for widespread government intrusions into personal privacy.

[1] See United States. v. Jones, 132 S.Ct. 945, 948 (2012).

[2] See id.

[3] Id.

[4] Id.

[5] See id. at 948-49 (“The Government introduced . . . GPS-derived locational data . . . which connected Jones to the  alleged conspirators’ stash house that contained $850,000 in cash, 97 kilograms of cocaine, and 1 kilogram of cocaine base.”).

[6] See id. at 949.

[7] See id.

[8] See id.

[9] See id. (“The text of the Fourth Amendment reflects its close connection to property . . . . Consistent with this understanding, our Fourth Amendment jurisprudence was tied to common-law trespass, at least until the latter half of the 20th century.”). See also U.S. Const. amend. IV (“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.”).

[10] See id. at 953-54.

[11] Id.

[12] See id. at 953 (“What we apply is an 18th-century guarantee against unreasonable searches.”).

[13] Id. at 955 (Sotomayor, J., concurring).

[14] Id. See also Stephanie K. Pell & Christopher Soghoian, Can You See Me Now?: Toward Reasonable Standards For Law Enforcement Access to Location Data That Congress Could Enact, 27 Berkeley Tech. L.J. 117, 119-20 (2012) (illustrating examples of the use of location data from cellular phones for criminal investigations).

[15] See Pell & Soghoian, supra note 14, at 128.

[16] Id.

[17] Id. at 129.

[18] Id. at 131-32.

[19] See supra notes 10-12 and accompanying text.

[20] See James Temple, Secret surveillance on the rise, SFGate (July 27, 2012, 12:04 PM), http://www.sfgate.com/technology/dotcommentary/article/Secret-surveillance-on-the-rise-3731617.php (“Basically it means a police officer generally can’t open your e-mail or listen in on calls without a warrant, but . . . [the] police can look into what cell phone towers might have caught your signal – in other words, your location.”); Pell & Soghoian, supra at 142 (“Stated simply, a D Order ‘compels [production of] all non-content records.’”).

[21] 18 U.S.C. § 2703(d).

[22] See Temple, supra note 20 (“[E]lectronic eavesdropping under the ECPA has increased sharply since 2006, particularly smartphone tracking.”); Pell & Soghoian, supra note 14, at 121 (“The tool proved so effective that the number of ‘requests’ to carriers for location information grew ‘exponentially’ over the past few years, with major wireless carriers now receiving thousands of requests per month.”).