On Tuesday, the 4th US Circuit Court of Appeals ruled that the government does not need warrant to track the location of more than 200 million Americans with smartphones.
It's an astonishing decision. Basically, according to the court, because the vast majority of us use cellphones and apps that track our locations, we've opted out of 4th Amendment privacy protections. Even more alarming, the court's ruling opens the door for the government to get access to all of our Internet-connected apps and software that have knowledge of our whereabouts.
The court reasoned that since we – the hundreds of millions of cellphone users in the US – have voluntarily disclosed our geolocation to a third party (our cellular providers), the third party can share that information with the government.
But that reasoning really only make sense if we disclose our geolocation voluntarily. But as anyone who has ever attempted to opt-out of such tracking knows, there's nothing voluntary about it. In fact, this location tracking is mandatory – extending not just to our smartphones but even to other people's cellphone and devices. Keep in mind, our devices regularly connect to other phones, computers, and cars to collect their location and data.
The court's ruling sets a remarkable precedent: Utilizing mobile technology is now a blanket opt-out of fundamental 4th Amendment privacy protections.
It's a troubling development, especially as more Internet-connected devices gather data about our private lives, the lives of our families and friends, and our biometric data and personal habits.
Let's hope this doesn't stand because the ruling is fundamentally incompatible with the intent and plain reading of the US Constitution. As the 4th Amendment makes clear: "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 … ."
Corrective action is desperately needed – both within the judicial system, but more importantly, in the creation of consumer protections to address 21st century technological realities.
The Federal Trade Commission needs to update consumer protections to empower consumers with meaningful control over our personal data. Until that happens, there is no meaningful notion of "voluntary" disclosure of private information – sharing is mandatory.
Congress must roll back the universal surveillance regime that the US government is attempting to implement. Otherwise, we are fostering a dangerous data arms race.
On one hand, law enforcement is trying to spy on millions of everyday Americans, and, on the other, tech companies are deploying stronger privacy protections that are certain to make legitimate law enforcement all the more difficult in the future.
And we need far more technological expertise informing federal judges. I do not believe the 4th Circuit Court set out to decimate the 4th Amendment, but I think in the court’s technical naiveté is obvious in their ruling.
I'm worried that we are headed along a dark trajectory – a dystopian future whereby everyday devices spy upon us more and more while privacy protections are whittled away to meaninglessness.
We have the capacity to correct these egregious wrongs, but protecting our civil liberties in the 21st century requires bold leadership and a deeper understanding of today’s technological realities.