From early cases of wiretapped bootleggers in the 1920s to modern surveillance of smartphone communications, the American legal system has had to adapt to the changing environment. Emerging technologies promise to further complicate this discussion.
The complex relationship between the law and technology has been a topic in the public eye since federal agents first tapped phonelines to catch bootleggers in the 1920s. Today, the prevalence of smartphones, cloud storage and yet-to-be-realized technologies continue to fan the flames of debate.
During an in-depth panel discussion April 10 at the National Constitution Center, legal experts tackled the multi-faceted conversation of how technology and the law fit together in the 21st century.
Among the more poignant topics addressed by the group, the issue of the third-party doctrine, which essentially allows the government to pursue any information held by a company on behalf of an individual without the necessity of a warrant.
When it was originally slapped on the books in 1979 by the Supreme Court, the thinking did not (understandably) take into account cellphones, cloud storage etc., and set the precedent that if information was shared with a third-party, the sharer was without the expectation of privacy as outlined in traditional readings of the Fourth Amendment.
Today, some, like Vanderbilt School of Law’s Christopher Slobogin, believe technology will ultimately be the precedent’s undoing. “I think the third-party doctrine is on its last leg,” he said.
While there are two sides of the argument — the hardliners for strict adherence and the other for stronger requirements — Slobogin argues for a moderate though difficult-to-implement approach where the rules are based more on the type and quantity of data being sought.
He acknowledges the necessity for the law enforcement community to have relatively quick access to investigative resources, but concedes that large quantities of personal data would be an overreach on the part of police.
“As a normative matter, it doesn’t make sense to require a warrant every time a third party is approached for information about our information,” Slobogin said. “If we require probable cause right from the get-go, law enforcement would come to a screeching halt.”
Implementing what he called a “proportional approach” is a problem he admits has not been solved.
Jim Harper, vice president of the Competitive Enterprise Institute, also said proportionality would be difficult to implement, comparing it to the test to determine “reasonable” in the legal sense. While defining what might seem reasonable or proportionate, determining what is acceptable on the societal level is easier said than done.
“Proportionality, as you’ve identified, is very hard for judges to administer. Just like the reasonable expectation of privacy test, it asks a panel of judges … to figure out what society’s privacy preferences are and whether those are reasonable or not," Harper said. "That’s not a juridical exercise.”
In a similar vein to the discussion of the third-party doctrine, the issue of cross-border data acquisitions on the part of law enforcement was also a point of discussion. With companies like Google and Microsoft doing business and storing data at an international level, Jennifer Daskal, associate professor of law at American University, touched on the complicated relationship law enforcement agencies have with technology.
Where it might make sense to request data relating to a crime in the location a crime occurred, Daskal said companies have been reluctant to produce data based on where it is physically being housed. To access the data being stored in another county, an American agency might have to file a mutual legal assistance request with the authorities of that country, effectively adding weeks to the investigative process.
“It makes no sense for jurisdiction over data to turn on the question of where data happens to be located at any given moment,” she argued.
Similarly, when investigating the murder of a British national on British soil, police would face the same impediment trying to access data held by an American company.
Regardless of where the panelists fell on the spectrum laid out by the overarching conversation, all seemed to recognize that technology would only continue to require clarification and adjustments on the part of the American legal system.
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