Today’s tech-ubiquity has led to a growing tension between freedom of speech and privacy law. In years to come, civil society organization as well as privacy and free speech advocates will have to be vigilant in fighting against outmoded aspects of privacy law; otherwise, government surveillance through technology will cast a widespread chilling effect over the exercise of First Amendment rights.
Since its inception, the Fourth Amendment has been based on the idea that the prime danger to private sovereignty is that the “sanctity of [our] home[s] will be breached by government actors.”[1] To the American mind, what has traditionally mattered is sovereignty within one’s home--the right to privacy, at its metamorphic core, is a right to hide behind the walls of one’s home.[2] Yet smart phones, big data, "Internet of Things" devices--the modern-day staples for communication--can now compose a rich, granular mosaic of any given user’s life patterns inside the home.[3] This, of course, has garnered a great deal of attention from law enforcement, whose actors are limited by the warrant framework in place. Indeed, there has been an uptick in expansive warrants, seemingly unconnected to the U.S. national security apparatus.[4] Google was ordered by a district court to turn over the personal information of all users who Google-searched an Edna, MN, resident.[5] Likewise, Arkansas police obtained a warrant to search a murder suspect’s Amazon Echo. Amazon has contested the warrant, claiming that Echo’s recordings and responses are forms of free expression, therefore deserving of heightened protection under the First Amendment.[6] In Amazon’s view, First Amendment protection necessarily includes “the right to browse and purchase expressive materials anonymously, without fear of government discovery.”[7]
In addition to overreaching warrants, the third-party doctrine--a product of analog-era jurisprudence--dramatically erodes privacy protections. Under the doctrine, those who voluntarily share information with third parties are understood to have no cognizable expectation of privacy as to that information.[8] Here is where the contradiction deepens: data collected within the home is streamed to the servers of a third-party corporation. There is nothing stopping Google from voluntarily sharing, sans warrant, users’ Nest home data with law enforcement.
These lesions in privacy law enable unbridled government surveillance into the home, the citadel of Fourth-Amendment privacy.[9] And, It is well documented that fear of government access to user information discourages people from full engagement online, compromising freedom of expression in the most private of spaces.[10] Therefore, in the midst of seamless data collection by "smart" devices, principles of privacy law must be realigned with today’s technological realities.
EDIT: I'd be remiss if I didn't at least mention legal scholar Orin Kerr's defense of the third-party doctrine: The Case for the Third-Party Doctrine, one of the few well-thought out defenses of the doctrine.[11] He contends that mainstream criticism of the third-party doctrine overlooks two important benefits of the rule--those being: 1) the rule ensures technological neutrality in Fourth Amendment rules and inhibits the substitution effect (wrongdoers are less able to take public aspects of their crimes and replace them with third-party private transactions, effectively hiding their criminal enterprises from observation); 2) the rule fosters ex ante clarity by matching the Fourth Amendment rules for information with the Fourth Amendment rules for location. I suppose whether or not the doctrine should have a place in today's legal world depends on where society will decide to draw the line between public and private spaces.
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[1] Boyd v. United States, 16. U.S. 616, 630 (1886) (observing that the Fourth Amendment is based on the idea that the prime danger to private sovereignty is that the “sanctity of [our] home[s] will be breached by government actors.”).
[2] Kyllo v. United States, 533 U.S. 27, 40 (“[T]he Fourth Amendment draws ‘a firm line at the entrance to the house.”); see also James Q. Whitman, The Two Western Cultures on Privacy: Dignity Versus Liberty, 113 Yale L.J. 1151 (2004).
[3] See Robert Scobel & Shel Israel, Age of Context: Mobile, Sensors, Data and the Future of Privacy (2006).
[4] See The Law Is My Ass E08, February 4, 2017 with Jamie Lee Williams of the EFF, The Law Is My Ass (Feb. 4, 2017).
[5] Ashlee Kieler, “Search Warrant Issued For Everyone Who Googled Identity Theft Victim’s Name”, Consumerist (March 17, 2017).
[6] Thomas Fox-Brewster, “Amazon Argues Alexa Speech Protected By First Amendment In Murder Trial Fight”, Forbes (Feb 23, 2017).
[7] Memorandum of Law in support of Amazon’s Motion to Quash Search Warrant at 2, State v. Bates, No. 04CR-16-370 (Ark. Cir. Ct. 2017).
[8] Smith v. Maryland, 442 U.S. 735 (1979).
[9] See U.S. v. Jones, 132 S.Ct. 945, 957 (Sotomayor, J., concurring) (“[I]t may may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties.”).
[10] See Jon Penney, Chilling Effects: Online Surveillance and Wikipedia Use, 31 Berkeley Tech. L. J. 117 (2016); see also Amazon.com LLC v. Lay, 75 F.Supp.2d 1154, 1168 (W.D. Wash. 2010) (“The fear of government tracking and censoring one’s reading, listening, and viewing choices chills the exercise of First Amendment rights.”); Jeff Guo, “New study: Snowden’s disclosures about NSA spying had a scary effect on free speech”, The Washington Post (April 27, 2016).
[11] Orin Kerr, The Case for the Third-Party Doctrine, 107 Mich. L. Rev. 561 (2009).