Privacy SOS

Justice Alito: Legislatures must pass 21st century privacy laws, can’t be left to courts

Over the weekend, Supreme Court Justice Samuel Alito spoke at the Bush presidential library in Texas, where he made some interesting comments on Fourth Amendment law in the digital age.

During the past ten years, the Court has applied the Fourth Amendment’s prohibition against unreasonable search and seizure to modern technology. I think this is going to be a very big issue moving forward.

These are just some of the issues that may come up. The problem is that in making determinations we are put in a position of determining what is a reasonable expectation of privacy. We are very ill-positioned to make these determinations…. We are not up on all the latest technology. If privacy is to be protected in the future, that balances the interests of law enforcement and the interest of privacy, legislatures should take the lead. They are in a better position than the courts.

I agree with Justice Alito. Legislatures are better positioned than courts to address digital privacy issues for a number of reasons, foremost among them timeliness and specificity.

Regarding timeliness, take the recent Wurie/Riley case, in which the Supreme Court held that police must obtain a warrant before searching someone’s cell phone incident to arrest. It was a great decision, but unfortunately came about fifteen years after people nationwide started using cell phones in daily life.

It takes a long time for cases to reach the Supreme Court. In digital privacy matters, getting standing to challenge warrantless electronic monitoring isn’t always easy, and then there’s the uphill battle of reaching and getting the SCOTUS to take your case. For those reasons, we may not see a Supreme Court decision on something as significant as facial recognition tracking until decades into its widespread application.

Ultimately, waiting for the Supreme Court to address how the Fourth Amendment should apply to new technologies basically guarantees a long grace period in which anything goes for law enforcement—a major problem, particularly for the people targeted by warrantless surveillance later found to be illegal.

A Massachusetts cell phone spying case illuminates the specificity issue. In the Massachusetts Supreme Judicial Court’s ruling in Commonwealth v. Augustine, my brilliant colleagues won a warrant protection for two weeks of historical cell site location information (CSLI). Police had obtained two weeks of our client’s historical location data from his cell phone company, but did so without a warrant. We challenged that warrantless spying and the state high court agreed it was unconstitutional. So now in Massachusetts, police must obtain a warrant to get their hands on two weeks or more of our historical cell phone location information.

But the ruling didn’t specify whether police can obtain one piece or one week’s worth of the same information without a warrant. Courts rule on the facts in front of them. The cops in Augustine spied on our client for 14 days, so the court ruled on the 14 days.

In order to plug the gaps to make sure police must get a warrant to track our cell phones even for a moment, we need the state legislature to act (this bill would fill the gaps). In the absence of congressional action on cell phone location tracking, a patchwork of law has developed, confusing everyone.

Justice Alito is right: legislatures across the nation and in DC must take action to move the ball forward on Fourth Amendment rights in the digital age. We can’t wait around for decades to ensure our use of technology doesn’t compromise our rights, and lawmakers are in the best position to act quickly and comprehensively to make sure we can have our gadgets and our freedom, too.

© 2018 ACLU of Massachusetts.