Katz on a hot tin roof - saving the Fourth Amendment from commercial conditioning by reviving voluntariness in disclosures to third parties.

• Author: Leary, Mary Graw

INTRODUCTION

In a world in which Americans are tracked on the Internet, tracked through their cell phones, tracked through the apps they purchase, and monitored by hundreds of traffic cameras, privacy is quickly becoming nothing more than a quaint vestige of the past. This situation has caused courts to analyze, consider, and wrestle with the implications that these technologies have on the Fourth Amendment and on privacy. This national dialogue has recently been re-fueled by the Supreme Court's failure to resolve, shape, or offer meaningful guidance on these issues in its recent opportunities to do so. (1)

In a previous article discussing the intersection of technology and the Fourth Amendment, I proposed a reframing of the issue, suggesting that the problem was more fundamental than previously characterized. (2) Much focus has been on situations in which the government has used a technology to conduct surveillance, but I suggest that the issue is greater than governmental use of modern technologies. That previous article posited that society has reached the point about which Justice Blackmun cautioned in Smith v. Maryland--the point at which privacy "expectations [have] been 'conditioned' by influences alien to well-recognized Fourth Amendment freedoms." (3) Society finds itself at this juncture not because of governmental conditioning, as Justice Blackmun warned, but because of a concept I defined as "commercial conditioning." (4)

That article outlined the Fourth Amendment implications of commercial entities taking information from individuals' digital dossiers or digital footprints and sharing it with others, all without affording the individuals the opportunity to object. This conditioning cripples the current Katz approach to establishing a search, necessary to trigger Fourth Amendment protections. (5) First, it strips individuals of the ability to demonstrate subjective expectations of privacy. Second, by creating a climate in which no one has an expectation of privacy, these commercial entities have precluded an individual's ability to establish any privacy expectation that society would find reasonable. (6)

I have argued elsewhere that the most promising solution to this problem is a legislative one. (7) Similar to the "Do Not Call" list, I argued that a commercial entity must give an individual the opportunity to demonstrate an expectation of privacy in his or her information before invading one's digital dossier and publishing the information. Specifically, that proposal called for a legislative requirement that an individual opt into such information disclosure before such a disclosure could be made. (8) This framework of commercial conditioning presents an "upstream" approach to the privacy encroachment, asserting that the more significant threat to privacy is not governmental conditioning, but commercial conditioning.

This Article further develops the concept of "commercial conditioning," and explores not a legislative solution, but possible judicial responses to the growing reality of private commercial entities eroding privacy expectations and thereby expanding governmental power. This Article does not focus on the legality of the commercial activity (such as online tracking), and does not call for its prohibition. Rather, it accepts for purposes of argument that the political will to disallow the practice legislatively does not exist. The Article instead examines the deleterious effect of these commercial practices on the Katz test, and recommends the solution begin from there. This Article seeks to guide the judiciary in analyzing evidence containing certain private information obtained by the government from these commercial entities. Such evidence should be afforded the procedural protections of the Fourth Amendment when the government accesses it, a protection not currently available to this private information. In so doing, this Article focuses on a narrow category of information collection by private commercial entities. This includes two types of information: information taken involuntarily or without meaningful consent (1) by commercial entities with which a consumer directly interfaces (primary party takers), and (2) by unknown third parties with whom consumers do not have a direct relationship (third party takers). It further focuses on the Fourth Amendment implications when the government seeks to access this narrow category of information.

The Fourth Amendment is supposed to provide individuals certain procedural protections when the government searches private information: namely, a warrant and probable cause. In the absence of legislation regulating or limiting this data collection (or government access to it), the Fourth Amendment should prevent such data from being obtained by the government without any procedural protections. The sole reason this is not the case under our current Fourth Amendment scheme is because of the role commercial entities have come to play in everyday life. In response, this Article proposes that when the government seeks information previously taken involuntarily from the consumer by a commercial entity (either by primary or third parties) that information should have some Fourth Amendment protections. Information taken involuntarily is information taken from the individual without knowledge or adequate consent. Part I of this Article addresses the data collection--both the factual reality and its legal implications--describing commercial conditioning in more detail. Part II analyzes the precedent for assessing the effect of technology on Fourth Amendment freedoms, as well as scholarship, judicial opinions, and the views of individual justices who address the issue. Part III outlines the proposal to reinvigorate the voluntariness aspect of information disclosure inherent in the Katz framework. Finally, the Article outlines why this minor judicial adjustment to current doctrine is supported by the purpose of the Fourth Amendment and its corollary doctrines regarding third party holders of information and state action.

1. THE PROBLEM OF COMMERCIAL CONDITIONING

   Many threats to privacy exist, but the most serious threat to Fourth Amendment protection in a modern technological age is not government utilization of advanced surveillance technology. (9) Rather, the threat to Fourth Amendment protections is more fundamental and more "upstream" in the process of accessing private information. The threat arises from commercial entities' ubiquitous use of surveillance technologies to obtain information on individuals and share it with others. Often these "others" are companies seeking the information in order to effectively advertise products to individuals. However, they also include the government when it requests or purchases said information. This threat, referred to in this paper and elsewhere as "commercial conditioning," harms individuals directly (by actually invading their privacy) and indirectly (by eviscerating overall Fourth Amendment protections).

   1. Commercial Conditioning in Daily Life

      Commercial entities often take information from individuals' "digital dossiers" without the voluntary consent of the individuals. In so doing, these entities remove from individuals' lives the precious commodity of a sense of privacy--itself fundamental to true freedom. Professor Solove observes that in recent decades, the ability to control and share personal information has been transformed. (10) He correctly notes this is possible because one's personal information is amassed by the creation of a "digital dossier," a digital "collection of detailed information about an individual." (11) Palfrey and Gasser build on this concept with their term "digital identity," which is a subset of information "composed of all those data elements that are disclosed online to third parties, whether ... by [] choice or not." (12) Such information collected by entities can be as private as financial data involving debts, purchases, and transactions; biographical information including race, gender, and age; or more personal information such as health, medicine, sexual orientation, religious affiliation, and income. This information is collected by "companies [that the consumer may] have never established any contact with." (13)

      Commercial entities' nonconsensual gathering of this personal information from individuals' digital dossiers is commonplace--so commonplace, in fact, that while many know that their information generally can be collected by entities, they do not know how or exactly when. This Section will outline some of the various technologies, devices, and hardware used by commercial entities to collect private information. In so doing, this Article focuses on two types of data takings. The first is when information is extracted by companies with whom an individual is directly interfacing (primary party taking). The second type includes invasions by third party companies with which an individual has no direct interface (third party taking).

      1. Privacy Intrusion Generally

         The information within digital dossiers is not only information intentionally disclosed by individuals. It also includes information combined with data collected by entities without consumers' consent. (14) These entities then collate and aggregate data collected online about individual users in ways that can reveal significant information. (15) This collection and aggregation is fueled by the $23 billion American advertising industry that may pay web sites to advertise to their users, and also by a new tracking industry that thrives on the availability of information about individuals that technology collects. (16) Even large companies, which originally resisted the notion of tracking their customers, (think of Google's motto "Do No Evil") cannot resist the financial incentives. (17) The Electronic Frontier Foundation has warned there is a race to learn as much about users as possible, and it...