As law enforcement agencies and other government officials find more ways to use technology to monitor private citizens, lawmakers find themselves at a difficult crossroads – how to balance the usefulness of surveillance information with a person’s right to privacy. But some guidance on the issue may be on the way.
Professor Timothy O’Neill of The John Marshall Law School in Chicago has been awarded the school's 2014-2015 Edward T. and Noble W. Lee Chair in Constitutional Law, allowing him to undertake a detailed study next year on how technology affects what searches and seizures of information are considered reasonable under the Fourth Amendment. O’Neill will examine how data privacy and the law intersects with subjects such as Internet data collection and GPS information.
In an interview with Government Technology, O’Neill explained that he wanted to tackle the subject because he sees the U.S. Supreme Court beginning to assign Fourth Amendment protection to citizens in cases where law enforcement rely heavily on data collection and tracking. Under what's called the “mosaic theory,” these searches – done without a warrant – can become illegal under the Constitution.
“It’s an area that, as I’m nearing the end of my career, I figured this is the future of the Fourth Amendment and it’s something I wanted to learn about,” O’Neill said.
During the 2014-2015 academic year, O’Neill will teach only half his normal course load, which will free up time for the research. But he admitted that there aren’t any concrete plans on what he’s going to do yet – there isn’t a proposal he needs to fulfill. Instead, O’Neill will delve into current case law on technology and the Fourth Amendment and see where it leads him -- and he would like to put together something he can publish.
Fred Cate, a privacy expert and law professor at Indiana University’s Mauer School of Law, told Government Technology that if he was in O’Neill’s shoes, he’d focus on the third-party doctrine.
Compiled from two cases in the 1970s, the doctrine basically states that if you voluntarily provide information to a third party, the Fourth Amendment does not protect you from the government accessing it without a warrant. Put simply, you shouldn't expect the police and the government to turn a blind eye to that data.
Cate believes the doctrine is “nonsense,” but views vary about it in the legal world. Cate felt, however, that the impact of the third-party doctrine has larger ramifications today because almost everything we store on smartphones is held by a third party. Much the same is true for material stored in the cloud or our activities on social media.
“The U.S. Supreme Court has expressed some interest in the third-party doctrine, [even if] it’s still a minority of justices,” Cate said. “But it wouldn’t be wasting your time, you’d be writing about something you knew these justices would be interested in, and you would really try and make the case through dispassionate research and analysis as to why the third-party doctrine is so dangerous today and how much information it exposes to the government.”
Cate expressed doubt that any research uncovered by O’Neill would have any influence on the opinions of judges.
“Courts don’t pay attention to it,” Cate said. “Overwhelmingly there’s a lot written about how much courts ignore research. Legislators only pay attention to research if they think it is important to their position. So we’re starting with a low bar here as to what impact it will have.”
Cate added that while John Marshall has a “great reputation” when it comes to IT-related work, the school is also considered a “tier two” law school and ranked well below more renowned legal institutions such as Yale or Harvard. As a result, he believes that even if O’Neill’s work made the rounds into courtrooms and legislative offices, it might be disregarded because it’s not coming from a more prestigious law school and university.
O’Neill agreed that it can be difficult to get judges to read the latest legal articles and said he felt the courts are relying less on citing the legal research of law professors. He chalked it up to the sheer volume of legal literature that gets published each year.
Getting state legislators to take note, however, is a different story. O’Neill said he’s had success over the years suggesting changes to Illinois laws and wouldn’t hesitate to pursue it again, if he felt it was important enough.
“If I ran into something where I thought a state statute might be helpful, I’ve found state legislators to be willing to read an article or listen to a presentation,” O’Neill said.