Over at Volokh Conspiracy, Orin Kerr conducted an impromptu survey about whether readers knew that cellphones transmitted locations to cellsite in order to know where to send calls. The results (with an astounding 1600 responses, 95% understanding how cellphones work, at least in this regard) reflected either a particularly knowledgeable group of readers or the bias of conducting a survey which essentially asked the respondent, “Are you a moron or not?” Still, five percent conceded they were.
Orin later explains the purpose of his survey.
The reason I asked, as some have figured out, is that one of the legal issues that arises in whether the Fourth Amendment protects cell-site data is whether users know that the information is transmitted. My own view is that as a matter of law, courts should assume that users of a technology understand the technology when the courts apply Fourth Amendment law to it. The Constitution shouldn’t safeguard ignorance, and even if it did, improving understanding over time means that any rule based on ignorance has a limited shelf-life. Further, past Supreme Court cases have presupposed understandings of the technology: In Smith v. Maryland, for example, the Court presupposed that people know how telephones work when there wasn’t actually any evidence in the case that this was true.
This is a significant, and troubling, issue, given that Katz’s reasonable expectation of privacy remains the threshold. Whether an expectation of privacy is reasonable depends on what’s known, by us and by people generally, about the technology we use. For those with some degree of tech savvy, the fact that cellphones communicate with cellsites on their own is hardly a shock. For others, it’s just a thingy that lets you make phone calls without wires. That it works matters. How it works, not so much.
This becomes particularly problematic in law because judges, charged with deciding whether to suppress warrantless searches and seizures and issuing search warrants, are not required to have any particular degree of technological knowledge or scientific acumen. Yet they do tend to suffer from the same irrational bias that afflicts the rest of us, they believe they are reasonable.
Some courts have concluded that reasonable people don’t know how cell phones work, and that they are sort of a magic box that secretly gives away location information. They haven’t offered any empirical support for this view: It is just offered as a guess of what reasonable people think. My intuition is that this guess closely matches what the judge thought before the judge had the case: If the judge saw the technology as a magic box, then that is how a judge will conclude a reasonable person would think about it.
In other words, the reasonableness of our expectation of privacy in technology is dependent on whether the judge understands how things work or thinks they are some sort of magic box. While it’s not entirely clear, I suspect that Orin’s point with regard to cellphones is that if everyone understands that cellphones provide tracking information to their third party provider, there’s no reasonable expectation of privacy in that information.
This strikes me as showing two discrete problems. The first going to Orin’s point, that judges’ concept of reasonable is built on his degree of technological worldliness. Given that we presume to be a nation of laws rather than men, who cares what each individual judge knows about technology? Why should our rights be dependent on whether some 90 year old prefers an iPad or an IBM Selectric?
Moreover, once a judge is taught the technology during a case, the entire world of reasonableness flips on its head, and suddenly the reasonable person knows all there is to know about technology, because the judge has finally learned something. And this further presumes he learned and understood it correctly, which is likely a stretch. This goes to Orin’s argument that a rule based on ignorance has a short shelf-life.
Orin argues that preserving the right to be ignorant of technology offers little support for a rule. The same is true of a rule based on cutting edge knowledge of technology. The same is true of a rule based on technology at any moment in time, given that the amount of knowledge generally possessed today is likely to be significantly less than what’s known a year or two from now. Tech changes far too quickly to be deemed static, as were other inventions of the last century which generally stuck around for decades, other than the 8 track tape.
So if the issue arose about how 4G works today, and whether it would be reasonable for a person to expect privacy from others on his 4G network (for example), the decision would be rendered in a year or two based on generally accepted understanding a year or two from now. By that point, everybody would understand how 4G works, even though today most of us have no clue what 4G is, other than an advertising slogan.
Given what technology is doing to our privacy, which is essentially rendering it wholly non-existent, determining reasonableness in this fashion will eviscerate any expectation of privacy, no matter how strongly we believe that our telephone calls and emails and IMs shouldn’t be open to government inspection. Other will know far better than I what technology is on the horizon, and how that technology, when viewed through the traditional Fourth Amendment lens, exposes our secrets to anyone with a password or backdoor.
Like privacy? Then we need a new set of rules that provide a different baseline for what’s ours and what’s not. The traditional paradigm is dead, as nobody with even a half-baked knowledge of technology is unaware that every single thing we do passes through the hands of a third-party provider, with a dozen copies living on some server in the bowels of a building in a town we never heard of, abrogating every rule created in the quiet days when rum runners outran revenuers. There’s no outrunning computers.
If Orin’s “technology neutral” approach prevails, we can take comfort in having a principled approach that just happens to leave no aspect of our lives private. The good news is we have a rule. The bad news is that the rule is that you have no reasonable expectation of privacy. Now up against the wall and spread your legs.