ANALYSIS: Courts, Lawmakers Struggle to Restore Americans’ 4th Amendment Rights

Internet-of-things creates new surveillance tools, leading to alleged agency abuse

An Amazon Echo, center, and a Google Home, right, are displayed. (Mark Lennihan/AP Photo)

News Analysis

In 2018, the U.S. Supreme Court handed down a landmark decision that police officers had acted illegally in collecting months of cellphone data from a private company, without a warrant, to track the movements of a robbery suspect.

The majority opinion in Carpenter v. United States stated: “In light of the deeply revealing nature of CSLI [cell site location information] ... the fact that such information is gathered by a third party does not make it any less deserving of Fourth Amendment protection. The Government’s acquisition of the cell-site records here was a search under the Amendment.”

The Constitution’s Fourth Amendment protects Americans against government searches unless there is probable cause of a crime and a court-issued search warrant.

In July 2022, however, the American Civil Liberties Union (ACLU) published thousands of pages of records it acquired through Freedom of Information Act requests that showed that the Department of Homeland Security (DHS) had been routinely buying vast amounts of U.S. citizens’ cellphone location data, which had been extracted from smartphone apps.

Revelations of alleged surveillance abuses such as these have prompted federal and state lawmakers—Democrats and Republicans alike—to develop new laws in an attempt to restore Americans’ Fourth Amendment rights.

The Carpenter case reversed what up to that point had been a green light given by courts for law enforcement to search Americans’ personal information if they shared it with a third party, such as a bank, phone company, credit card company, or tech company. This was known as the “Third Party Doctrine,” and it had been in effect since the 1970s, when the Supreme Court ruled that the Bank Secrecy Act, which allowed the government to conduct blanket searches of private bank data without a warrant, didn’t violate the Fourth Amendment.

With the Carpenter decision, however, “the court ruled 5–4 that they do need to get a warrant to get that cellphone location data,” Devin Watkins, an attorney at the Competitive Enterprise Institute, told The Epoch Times. “If you need a warrant for cellphone location data, you should need the same kind of warrant for bank records.”

Your Home Is Watching You

“Under the Fourth Amendment, the home is a castle; it is the place where one may retreat and ‘be free from unreasonable governmental intrusion,’” Grace Manning, of the Georgetown University Law Center, wrote in a 2019 report titled “Alexa, Can You Keep a Secret?”

“Not so with the smart home,” Ms. Manning wrote. “In the home enhanced by artificial intelligence, there is no reasonable expectation of privacy in data shared with third parties such as Amazon.”

The Third Party Doctrine argued that handing over one’s personal information to a bank was a choice, and thus Americans voluntarily surrendered their rights to privacy. Today, however, with utter dependence on cellphones, credit cards, online purchases, and the like, sharing personal data is essential to participating in modern society.

Smart home systems, such as Amazon’s Alexa/Echo system, are the latest battleground between law enforcement and privacy rights, and there have been several recent cases of police demanding access to Amazon data, often without a warrant, under federal statutes such as the Stored Communications Act (SCA), a 1986 law that governs electronic communications, including texts and email.

“To obtain electronic communication records under the Stored Communications Act, the Government need only show reasonable grounds to believe the records are relevant and material to an ongoing criminal investigation,” the Georgetown report states, while noting that “Chief Justice [John] Roberts called the reasonable grounds standard ‘a gigantic departure from the probable cause rule.’”

An August 2022 report by the Congressional Research Service states that “while the SCA was passed in 1986 to update communications privacy in light of rapidly changing technology of the time, modern electronic communications devices, applications, and online platforms have since outpaced the law.”

Today, about 60 million American households have installed home smart systems, and that number is projected to increase by 50 percent to more than 90 million households by 2027. Worldwide, more than 300 million households are estimated to have smart technology in their homes. In addition, any number of smartphone apps, such as Facebook, Amazon, and Uber, routinely collect data on users’ communications, movements, purchases, and other personal habits.

Federal Agencies Buy Personal Data From Brokers

It has recently been revealed in congressional committee hearings that federal law enforcement and intelligence agencies have been gathering and sifting through those data en masse, including purchasing vast amounts of Americans’ digital information from third-party “data brokers.” An internal January report by the Office of the Director of National Intelligence (ODNI), declassified by House Republicans, detailed the routine purchasing of “commercially available intelligence” (CAI) on U.S. citizens by the United States’ intelligence and law enforcement agencies.

According to the ODNI report, federal agencies have been buying up “large, sophisticated databases with consumer information that can include credit histories, insurance claims, criminal records, employment histories, incomes, ethnicities, purchase histories, and interests.” The report also notes the “potential for comparable abuse of CAI held by the [intelligence community]. In the wrong hands, sensitive insights gained through CAI could facilitate blackmail, stalking, harassment, and public shaming.”

And the curiosity of federal agencies about Americans’ behavior appears to only be increasing under the administration of President Joe Biden. Under the current iteration of the Bank Secrecy Act, bank transactions of $10,000 or more, and any transactions a bank considers “suspicious” for any reason, must be reported to the U.S. Treasury Department. In 2021, the Biden administration attempted to have that threshold lowered to $600.

In addition, according to the ACLU, the DHS has been paying millions to data brokers such as Babel Street and Venntel, which collects more than 15 billion location points from more than 250 million cellphones every day. These data allow the agencies to match devices to locations and “identify repeat visitors [and] frequented locations, pinpoint known associates, and discover patterns of life ... to identify persons of interest.”

This has led some to call for new legislation to restore Americans’ Fourth Amendment protections from unwarranted government searches and from abuse by private tech and financial companies.

In 2021, U.S. Sens. Ron Wyden (D-Ore.), Rand Paul (R-Ky.), and 18 others introduced bipartisan legislation called the “Fourth Amendment Is Not For Sale Act,” which attempted to block data brokers from selling Americans’ personal information to law enforcement and intelligence agencies without any court oversight.

“Doing business online doesn’t amount to giving the government permission to track your every movement or rifle through the most personal details of your life,” Mr. Wyden stated at the time.

“There’s no reason information scavenged by data brokers should be treated differently than the same data held by your phone company or email provider. This bill closes that legal loophole and ensures that the government can’t use its credit card to end-run the Fourth Amendment.”

A similar bill is currently moving through the House of Representatives.

States Take Action to Protect Personal Data

In the absence of federal legislation, states are taking the lead.

On May 11, Tennessee signed into law the Tennessee Information Protection Act (TIPA), joining California, Utah, Colorado, Connecticut, Virginia, Iowa, and Indiana in mandating that people have more control over their personal data. The TIPA mandates that large technology companies such as Google, Instagram, and TikTok must disclose to consumers what information is being collected about them through their online activities and how the company intends to use it.

Tennesseans will also be able to opt out of selling their personal information to third parties. The legislation also includes protections for biometric data such as voice records, fingerprints, retinal scans, and facial recognition.

“The overwhelming amount of personal information that large technology companies collect about us while we’re online is truly stunning,” House Majority Whip Johnny Garrett (R-Tenn.), the lead sponsor of TIPA, told The Epoch Times. “The Tennessee Information Protection Act is the culmination of a multi-year effort that will provide important safeguards for consumer-provided data while also increasing transparency and oversight.”

According to a report by the law firm White & Case, protections provided by TIPA apply primarily to personal data, and some state privacy laws “exclude de-identified or aggregate data, or publicly available information.”

Exclusions such as these appear to be used as justification by federal agencies when purchasing cellphone data. The ACLU report states: “In the face of the obvious privacy implications of warrantless access to this information, these companies and agencies go to great lengths to rationalize their actions.

“Throughout the documents, the cell phone location information is variously characterized as mere ‘digital exhaust’ and as containing no PII (personally identifying information) because it is associated with a cell phone’s numerical identifier rather than a name—even though the entire purpose of this data is to be able to identify and track people.

“The records also assert that this data is ‘100 percent opt-in,’ that cell phone users ‘voluntarily’ share the location information, and that it is collected with consent of the app user and ‘permission of the individual.’

“Of course, that consent is a fiction: Many cell phone users don’t realize how many apps on their phones are collecting GPS information, and certainly don’t expect that data to be sold to the government in bulk.”

Jake Morabito, communications and technology director at the American Legislative Exchange Council (ALEC), told The Epoch Times: “States are increasingly focused on consumer data privacy protections; however, some state laws governing law enforcement access to data are woefully out of date and in need of an upgrade.

“The internet and technology landscape has evolved drastically in just two short decades. Today’s consumers engage with a host of third-party digital services and cloud providers that were not even imagined when many of these statutes were first written.”

ALEC is working with state lawmakers to develop model legislation that will be more in line with today’s technology.

Youth Are More Accepting of Government Surveillance

At the same time, it appears that an increasing number of young Americans are happy to have the government watching them in their homes. According to a June poll by the Cato Institute, when asked whether they “favor or oppose the government installing surveillance cameras in every household to reduce domestic violence, abuse, and other illegal activity,” nearly one-third of Gen Z respondents (age 18 to 29) said they were in favor.

Youth are more willing to surrender their civil rights if they think it will make them safer.

Overall, only 14 percent of Americans thought this was a good idea, with Americans 45 and older most strongly against it.

“Americans over age 45 have vastly different attitudes on in‐home surveillance cameras than those who are younger,” the report states. “Being raised during the Cold War amidst regular news reports of the Soviet Union surveilling their own people may have demonstrated to Americans the dangers of giving the government too much power to monitor people. Young people today are less exposed to these types of examples and thus less aware of the dangers of expansive government power.”

In seeking safety over personal liberties, many Americans readily accepted vaccine and mask mandates, vaccine passports, lockdowns, and other pandemic diktats during the COVID-19 pandemic. And it could be that rising support among youth for socialism, which about half of Gen Z prefers to free-market capitalism according to several recent polls, corresponds with a more favorable view of enhanced government surveillance and authority.

“A lot of younger Americans right now don’t seem to put as much value as some of the older generation on [civil] rights,” Mr. Watkins said. “I’m hoping that’s a temporary thing.

“We have seen in the past many times where young individuals hold views like this. But then, as they grow older, their views change.”