Freedom from surveillance is shaping up to be a major human rights issue in the post-Snowden era. The UN human rights committee is calling for a review of how member states collect residents’ data, and a Pew study last month found that most Americans are concerned with government and corporate data collection.
For journalists, recent events such as the FBI posing as the Associated Press and an Uber executive allegedly threatening to expose the personal lives of the people writing about the company underscore the importance of digital security in the 21st Century, says legal scholar Nancy Leong.
But when it comes to finding what feels like a fundamental right for journalists and civilians alike within the Constitution, the issue isn’t as simple as the inclinations of the public and UN resolutions. Though there is an argument to be made that digital privacy rights are enshrined in the supreme law of the land, legal scholar Mark Tushnet of Harvard Law says that idea is actually controversial. It stems from outdated doctrines and case-law that doesn’t reflect modern realities.
A right to privacy was first found to exist within the Constitution in the abortion cases of the 1960s and 1970s, Tushnet explained in a recent phone interview.
In Roe v. Wade, Supreme Court Justice Harry Blackmun, writing for the court, said though “the Constitution does not explicitly mention any right of privacy,” past decisions indicate a “right of personal privacy, or a guarantee of certain areas or zones of privacy, does exist under the Constitution.” To protect a woman’s reproductive privacy in this case, the Court relied on what Tushnet calls a “slew of constitutional provisions,” including the First, Fourth, and Fifth amendments.
Legal scholars characterize this type of privacy as “decisional autonomy.” This is a different concept than a right to digital privacy, says Tushnet. Eventually, he says, it’s likely the court will be forced to consider the issue directly, but currently there have only been allusions to it, making the media’s argument that the National Security Agency shouldn’t be collecting the bulk metadata of Americans a more difficult one, due to lack of precedent.
There has been more case-law on a related issue–using the Fourth amendment to ward off unreasonable search and seizure of digital records by law enforcement agencies. That’s an area where Nathan Wessler, a staff attorney at the American Civil Liberties Union with the Speech, Privacy and Technology Project, has a lot of experience. He says the Third-Party Doctrine (yet another concept developed in the 1970s) deeming people to have given up their privacy when they disclose information or records for a discrete purpose, such as giving a canceled check to a bank, is a calamity in the digital era.
“It is essentially impossible to participate in modern life without giving over those sensitive bits of information,” he said in an interview. “How do we get around this outdated doctrine and create reasonable limits?”
Wessler explained a particularly problematic use of the Third-Party Doctrine is when federal authorities search prescription record databases without a warrant. Last year, in Oregon Prescription Drug Monitoring Program v. Drug Enforcement Administration, a trial court judge ruled a warrant must be obtained before databases containing sensitive health records could be combed by the agency. The decision is being appealed by the DEA, and will be heard by the Ninth Circuit in spring of 2015.
And while journalists may not be affected professionally by this decision, the same legal problems and principles apply to the government access of cellphone data, which can have direct implications with newsgathering, protecting sources, and unfettered free expression. They are being cautioned to take active steps in protecting their digital information.
“I have to use it. Does that mean police should get easy access to the location data…text messages,” asks Wessler, who adds this information would be accessible to authorities without a warrant, by invoking the Third-Party Doctrine.
Whether or not the Oregon decision is upheld, the Fourth amendment seems to be where the right to digital privacy has made the most progress. Leong, who teaches civil rights, constitutional law, and criminal procedure at the Sturm College of Law at The University of Denver, says she and others worry “that the people who are turning into the advocates on the front lines of digital privacy as far as the Fourth amendment is concerned are people charged with crimes, in a lot of instances really heinous crimes,” like child pornography, she says.
“I worry,” she added, that “people charged with unsavory things [are] on the front line of protecting digital privacy rights for everybody.” And though courts are neutral arbiters, subconscious bias could affect the outcome of decisions in this area, she says.
For now, it is laws beyond the Constitution that explicitly address privacy here. (And remember, since the Constitution only governs the government and not private parties, even if it expressly mentioned digital privacy, statutory law would still be necessary to protect citizens from private parties and corporations.)
The Genetic Information Nondiscrimination Act and the Health Insurance Portability and Accountability Act are just two US laws containing provisions to protect digital privacy. And in January, California will enact a Bill entitled, “Privacy Rights for California Minors in the Digital world,” which will allow minors to remove certain information from online. However, these pale beside most western countries, which prioritize digital privacy over data collection and often require consumers to opt in to it rather than actively opt out.
In the US, it’s evident constitutional and statutory laws aren’t keeping pace with technological advancements, and that’s a problem for ordinary citizens and journalists alike. “With developments in technology, this is yet another way that both the government and private parties can infringe on a journalist’s ability to do their job,” says Leong.
Marlisse Silver Sweeney is a freelance journalist and non-practicing lawyer in Vancouver. She graduated from Columbia’s Graduate School of Journalism in 2013, and her writing has appeared in Salon, The Daily Beast, American Lawyer, and other print and online publications across North America.