Computers, Privacy & the Constitution

Identity Ownership and the Fourth Amendment

-- By EstherLukman - 12 May 2015

Property and Privacy Rights in Our Identity

The right to publicity is both a property right and a privacy right. The right covers an individual’s name, likeness, personality, and other aspects of one’s identity and authorizes individuals to prohibit or control others’ use of the aforementioned for commercial purposes. Implicit within the right to publicity is the acknowledgment that individuals not only own their identity but are also entitled to privacy protections with respect to their identity. The right to publicity addresses commercial uses of one’s identity, but why should these two principles be limited to the same scope?

If we are to own anything, it seems intrinsic that we should own our identities. And if we are to receive any privacy protection from the government, at the least, it should shield our identities from unauthorized intrusion. Yet, the use of the subpoena process to bypass Fourth Amendment search and seizure protections flies in the face of these “should-be” truths.

Bypassing the Fourth Amendment

Under the Fourth Amendment, in most situations, property searches require a search warrant. Search warrants require law enforcement officers to convince a judge that a search of the specified property is likely to yield evidence of a crime. However, digital records aren’t subject to the same requirements.

To gain access to digital records, companies can subpoena companies that hold such records without a judge’s approval. These administrative subpoenas don’t require a showing that the search will yield evidence of a crime, just that the records are relevant to an investigation. Compound this low bar for search authorization with the fact that the cost of access to most Internet-based services is information and the fact that people store vast hosts of personal information in the cloud, and Fourth Amendment protections have been significantly reduced.

In People of the State of New York v. Harris (N.Y. Crim. Ct. 2012), the New York district attorney subpoenaed the tweets of an Occupy Wall Street protestor over the past 3.5 months. When the protestor contested the subpoena, the court replied that by sending information to Twitter, the defendant was “also granting a license for Twitter to distribute that information to anyone, any way and for any reason it chooses.” In explaining their reasoning behind this conclusion, the court pointed to United States v. Lifshitz (2d. Circuit 2004), where the court held that interest postings and delivered e-mails do not receive privacy protections because “users would logically lack a legitimate expectation of privacy in materials intended for publication or public posting.”

Following this reasoning, the near-whole record of our digital life is an open book for law enforcement. This is especially true when you consider that posts don't disappear from companies’ records just because the user has clicked “delete”.

Online Identity

To view all Internet-uploaded content as intended to be shared publicly is an overly broad presumption. If this were true, there would be no such thing as “private” Twitters or Instagrams, there would be no need for “friending” on Facebook, and e-mails wouldn’t have specified recipients in the “To” line. The line between public and private aside, when building an online presence, what users are essentially doing is building an online extension of their offline identities.

Social media profiles contain information about what we think, how we feel, where we went, what we ate, whom we associate with, and what we do. Our internet selves interact with other users through words and actions. Online, we search for answers and make all sorts of decisions. We are not only uploading information about ourselves to the internet; we, our identities, are living on the internet. Yet, users are not deemed as owning a proprietary or privacy interest in their online identities.

The more we use the Internet, the more complete this online identity is, and the more searchable our identity becomes to law enforcement. The choice shouldn’t be “online and it’s public” or “offline and 4th Amendment-protected”. The fact that our online selves do not exist physically or operate in a physical space does not mean that they are any less real.


Webs Webs

r2 - 26 Jun 2015 - 21:13:09 - MarkDrake
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