Today’s fun Supreme Court fact (it was today’s when I started writing this) is that according to Justice Elena Kagen, most of the justices don’t know shit about computers and the internet. That makes sense since they’re (1) lawyers and (2) old.
“The justices are not necessarily the most technologically sophisticated people,” she said, adding that while clerks email one another, “The court hasn’t really ‘gotten to’ email.”
Kagan, at age 53 the youngest and most recently appointed justice, said communication among the justices is the same as when she clerked for the late Thurgood Marshall in 1987.
Justice write memos printed out on paper that looks like it came from the 19th century, she said. The memos are then walked around the building by someone called a “chambers aide.”
This shouldn’t come as a surprise to anyone who’s paid even a little attention to the Court’s rulings (or lack thereof) on Fourth Amendment protections of our digital data, especially when our digital data is stored in the cloud. As Orin Kerr summarizes it:
The “third-party doctrine” is the Fourth Amendment rule that governs collection of evidence from third parties in criminal investigations. The rule is simple: By disclosing to a third party, the subject gives up all of his Fourth Amendment rights in the information revealed. According to the Supreme Court:
[T]he Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed.
In other words, a person cannot have a reasonable expectation of privacy in information disclosed to a third party. The Fourth Amendment simply does not apply.
That rule makes sense in the physical world: If you loan your car to a friend, and he gets pulled over for speeding, and he voluntarily lets the police look in the trunk to find that kilo of meth with your fingerprints on the bag, it won’t do you any good to complain that they didn’t get a warrant or have your consent.
Kerr argues that the third-party doctrine prevents criminals from hiding behind confederates, and that it therefore makes sense to extend the doctrine into the digital world, so that if you send a few files to a friend, and he lets the feds look through them, that’s not really a violation of your Fourth Amendment rights any more than it was when he let them look in your car. I’m not positive, but I think that’s a reasonable argument.
What I don’t agree with, however, is the idea of extending the third-party doctrine to cover data that I upload to Facebook, send via Gmail, or store in the Amazon cloud. Those companies are not confederates in crime. They’re not even my friends. They’re neutral service providers. They may handle the data I give them, but they don’t use it.
This is a distinction that is recognized elsewhere in the law. The government can’t listen to your phone calls without a warrant, even though they travel over the phone company’s equipment. Heck, without a warrant the government can’t even read mail you send through the U.S. Postal Service, even though you voluntarily handed that mail over to the very government that wants to read it. I may have put the data in the hands of a third party, but it doesn’t make any more sense for the government to get that data without a warrant than it does for them to pop the trunk of my car because I parked it in the lot Denny’s, and the manager there says it’s okay.
But I digress. The text of the Fourth Amendment begins (emphasis mine):
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated…
Your papers are explicitly mentioned. Of course, at the time the Constitution was written, paper was the preferred information storage technology. Educated people like the founding fathers had libraries and writing desks, and they traveled with briefcases and notebooks. The Fourth Amendment protected all of that.
Nowadays, we live our lives in the digital world, and we keep our papers on computers, on tablets, and even on our mobile phones. The fact that some of that data isn’t actually stored on our personal devices, but is instead loaded to those devices on demand from an external repository is a fascinating and useful technological detail, but it doesn’t change the fact that this stuff is still the same sort of thing the Constitution means by “papers.”
I mean, does anybody really think that if the founding fathers had iPads and Androids that they wouldn’t have written the Fourth Amendment to protect the personal data we put into them, regardless of where it happens to be physically stored? I think it would have been obvious to them that information stored in the digital cloud deserves the same protection as ink on paper.
And one day when the Supreme Court is made up of people who live their lives in the digital world, maybe it will be obvious to them too.
Addendum: Gideon has something to say about this too.
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