The Fourth Amendment Has Its Limitations, but Congress Is Doing Its Job
The Constitution can use some help now and again.
The Fourth Amendment can no longer safeguard Americans’ privacy sufficiently. In the digital age, the federal government purchases troves of data — harvested from everyday electronic devices — from which officials deduce astoundingly personal details about Americans’ lives.
Purchasable date — known as “private market data” (PMD) — “includes information on nearly everyone that is of a type and level of sensitivity that historically could have been obtained, if at all, only through targeted (and predicated) collection,” as put in a recently declassified report from the Office of the Director of National Intelligence.
This does great violence to the spirit, though not the letter, of the Fourth Amendment. So, to end this practice, the House Judiciary Committee has advanced the Fourth Amendment Is Not For Sale Act. This bill recognizes the the Bill of Rights’ unavoidable limitations as well as Congress’s duty to color in constitutional blank spots.
This author argued as much this week in The Hill:
The Bill of Rights, for all its wisdom, provides but a partial enumeration of a citizen’s natural rights. Moreover, its particulars, in several instances, only imperfectly protect those enumerated rights. Given the inherent limitations of language and written law, no code or constitution can anticipate every threat that might rise to menace individual liberty and order. Moreover, technological, and other societal, innovations create novel challenges that require equally novel statutory solutions.
Read the full piece here.
The first Congress did not envision the civil-liberties threats that arise from the internet, smartphones, location tracking, etc. — how could it? This Congress can, and does, however, and it deserve plaudits for advancing ameliorative legislation.
A bit more on the status quo. Oren Kerr, a law professor at the University of California, Berkeley, summarizes the relevant legal issues:
[E]xisting law leads to a clear answer: The government can buy business records without a warrant or any cause. The Fourth Amendment does not apply. The reason is that a company will have common authority over business records that it has created and controls. That common authority permits third-party consent. When a company voluntarily sells its business records, its consent renders any search of the records reasonable.
Kerr’s full paper is illuminating and comes highly recommended.
Moreover, few Americans realize the staggering volume of data the digital economy generates. Klon Kitchen, a nonresident senior fellow at the American Enterprise, explains:
In 2018, people created, captured, copied, and consumed 33 zettabytes (ZB) of data—approximately 33 trillion gigabytes or 128,906,250,000 maxed-out iPhone 12s’ worth of information. This number jumped to 59 ZB in 2020 and is predicted to hit 175 ZB by 2025. Put another way: Humans currently produce 2.5 quintillion bytes of data every day. If you laid flat 2.5 quintillion pennies, you could cover the earth’s surface five times. By 2025, this number is projected to be 463 exabytes every day. Again, for reference: If a gigabyte is the size of the earth, an exabyte is the size of the sun—and you can fit about 1.3 million earths in the sun.
To put it into even more accessible metrics, in every minute of every day in 2020, users uploaded 500 hours of video to YouTube, sent 41 million messages on WhatsApp, uploaded 147,000 photos to Facebook, installed TikTok 2,704 times, submitted 69,000 applications on LinkedIn, and hosted 208,000 Zoom meetings.6 Every minute. Every day. And this is only the beginning.
As fifth generation (5G) and subsequent telecommunications networks that can transport even more data come online, the oft-promised “Internet of Things” (IoT)—a world where the internet is not just a place you go on your phone, tablet, or laptop, but where it is everywhere, connecting almost everything, and is assumed the way one assumes air-conditioning when you walk into a building—is projected to include more than 30.9 billion IoT devices globally by 2025.7 We are not just awash in data; we are drowning in it, and the flood is rising exponentially.
Dear lord.
The New York Times experimented with PMD, discovering the following:
The Times Privacy Project obtained a dataset with more than 50 billion location pings from the phones of more than 12 million people in this country. It was a random sample from 2016 and 2017, but it took only minutes — with assistance from publicly available information — for us to deanonymize location data and track the whereabouts of President Trump.
…
The meticulous movements — down to a few feet — of the president’s entourage were recorded by a smartphone we believe belonged to a Secret Service agent, whose home was also clearly identifiable in the data. Connecting the home to public deeds revealed the person’s name, along with the name of the person’s spouse, exposing even more details about both families. We could also see other stops this person made, apparently more connected with his private life than his public duties.
Novel challenges require novel solutions. To govern is the government’s job, after all.
Some Wisdom
In The Wealth of Nations, Adam Smith lays out Friedrich Hayek’s knowledge problem. He writes:
The statesman, who should attempt to direct private people in what manner they ought to employ their capitals, would not only load himself with a most unnecessary attention, but assume an authority which could safely be trusted, not only to no single person, but to no council or senate whatever, and which would no-where be so dangerous as in the hands of a man who had folly and presumption enough to fancy himself fit to exercise it.
And later:
The sovereign is completely discharged from a duty, in the attempting to perform which he must always be exposed to innumerable delusions, and for the proper performance of which no human wisdom or knowledge could ever be sufficient; the duty of superintending the industry of private people, and of directing it towards the employments most suitable to the interest of the society.
Some Beauty
The theory of books is noble. The scholar of the first age received into him the world around; brooded thereon; gave it the new arrangement of his own mind, and uttered it again. It came into him life; it went out from him truth. It came to him short-lived actions; it went out from him immortal thoughts. It came to him business; it went from him poetry. It was dead fact; now it is quick thought. It can stand and it can go. It now endures, it now flies, it now inspires. Precisely in proportion to the depth of mind from which it issued, so high does it soar, so long does it sing.
Or, I might say, it depends on how far the process had gone of transmuting life into truth. In proportion to the completeness of the distillation, so will the purity and imperishableness of the product be.
–Ralph Waldo Emerson
Some Levity
A Stanford professor placed first in wordplay this week on the platform formerly known as Twitter.
Sundry Links, &c.
Austin Riley is an all-American kind of guy.