Page 36 - Privacy in a Cyber Age Policy and Practice

MORE COHERENT, LESS SUBJECTIVE, AND OPERATIONAL 21

specific procedures, grants an agent a license to do so. In other cases, col-
lection of some information should be allowed, but the ability of the gov-
ernment to carry out secondary usages should be limited or banned. To
express this notion in terms of the expectation of privacy, an individual
suspected of a crime should expect to be questioned by the police but
should also be able to expect that their answers will be locked away if they
are found innocent.
Several overarching legal doctrines do address the issues raised by sec-
ondary usages and cybernation. This chapter addresses two of these. First,
the third-party doctrine holds that once a person has knowingly relayed
information to a third party, sharing this information with law enforcement
officials by the intermediate party does not constitute a Fourth Amend-
ment search and therefore requires no warrant. The Supreme Court ruled
14
15
in United States v. Miller and Smith v. Maryland that business records
such as financial documents and records of phone numbers dialed are not
protected from warrantless collection by law enforcement agencies under
16
certain circumstances. The Court also held that law enforcement’s col-
lection of the content of conversations between suspects and third-party
informants is not presumptively unconstitutional, because those third par-
ties could pass along the information to the police even without technolog-
17
ical assistance. Richard A. Epstein summarizes the third-party doctrine
as follows: “The received judicial wisdom is that any person who chooses
to reveal information to a third person necessarily forfeits whatever protec-
tion the Fourth Amendment provides him.” 18
The third-party doctrine is particularly problematic in an age of cyber-
nation, because third parties can share information with others and com-
bine it with still more information, resulting in detailed and intimate
dossiers of innocent people unsuspected of crimes. Given that more and
more information about people is in the hands of third parties due to the
extensive number and scope of transactions and communications car-
19
ried out in cyberspace and stored in the cloud, if the third-party doc-
trine is allowed to stand, precious little will prevent the government from
intruding on the privacy of American citizens. Individuals constantly leave
behind them a trail of data with every click of a mouse; “data exhaust”
20
akin to the vapors left behind a car. Will Thomas DeVries points out that
one of the key characteristics of the “digital revolution” for privacy is that
“every interaction with the Internet, every credit card transaction, every
bank withdrawal, every magazine subscription is recorded digitally and
linked to specific individuals. [… The] impact of the digital age is so deep
and pervasive that expansion of a single area of privacy law is unlikely to
adequately address the problems. Since the digital age affects every aspect
of privacy, it requires an evolution not just in the existing framework, but