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The Interconnected Attack on The First and Fourth Amendments: Can We Use Technology to Fight Back?

March 15, 2024  •  7 minutes read
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Personal privacy violations, by both companies and governments, threaten our individual right to privacy, but they also discourages our rights to speak freely, to maintain a free press and to freely associate. Our efforts to protect privacy and particularly digital privacy have a direct relationship to the preservation of the other fundamental human rights we enjoy.

An interplay exists between the rights enumerated in the First Amendment and those found in the Fourth Amendment of the U.S. Constitution.

The First Amendment protects freedom of speech and expression, while the Fourth Amendment safeguards against unreasonable searches and seizures. These amendments complement each other by ensuring individuals can freely exercise their rights to speak and associate without fear of unwarranted government intrusion.

So it should come as no surprise that our rights under both the First and Fourth Amendments are under attack, both technologically and ideologically. Challenges to these fundamental human rights are often intertwined. The proliferation of commercially available data, the expansive reach of surveillance programs, and evolving legal interpretations contribute to a complex landscape where the protection of free speech and privacy rights is under assault from every angle.

So how did we get here? Why are intrusions on privacy so pervasive? Why does everyone figuratively look over their shoulder to see if they are being watched?

In order to answer these questions, let’s look at three major trends which all converge on our modern moment.

 

Third-Party Doctrine Free-For-All

First, we need to understand how the Fourth Amendment became so legalistically perforated. The Institute for Justice refers to the evisceration of our privacy rights as “swiss cheese.” One of the big culprits is a legal principle called “Third-Party Doctrine.” This concept goes back to a 1979 Supreme Court decision in the case of Smith vs Maryland.

In this case, the police installed a pen register at a telephone service provider to record the numbers dialed by a suspect without obtaining a warrant. The Supreme Court held that the installation of the pen register did not qualify as a "search" under the Fourth Amendment. The Court’s explanation reasoned that individuals do not have a legitimate expectation of privacy when they dial a telephone number, because they knowingly reveal that information to the phone company.

This case is often cited as the foundational precedent for Third-Party Doctrine.

In simple terms, it comes down to this: when you voluntarily share information with a third-party, the government believes you forsake your expectation of privacy in that information.

As you can imagine, with the inception of Third-Party Doctrine, the proverbial camel’s nose was now under the privacy tent. And as the communication technologies and eventually digital services proliferated, government courts repeatedly cited this precedent to open the floodgates to all types of warrantless search and surveillance.

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“Try My App - Its Free”

Now let’s look at another megatrend which became pervasive as a business model across the technology industry over the last 30 years. Consumers have come to expect most digital services for free. In the contemporary landscape of "free" digital apps and services, the cost of access often comes at the price of individual privacy and freedom. Nothing is ever truly free. Everything of value has a price. Sometimes that price is not monetary, and in other situations, it’s just unclear who is paying.

An increasingly popular and true maxim is this: “When the app or service is free, YOU are the product.”

These business models frequently rely on extensive data collection practices, tracking users' behaviors, preferences, and interactions. Your personal data serves as the currency that sustains these ostensibly free platforms. While users may enjoy the benefits of seemingly costless services, the very real and consequential trade-off is a surrender of privacy.

Your personal privacy is being violated by the government, corporations, and individuals through analysis of massive amounts of commercially available data.

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Backdoor Censorship

The erosion of legal protections for privacy and the rise of the free-app ecosystem have opened novel paths to censorship. The First Amendment prohibits the government from making laws "abridging the freedom of speech.” This isn’t absolute. There are restrictions on certain types of speech, such as obscenity, incitement to violence, and defamation. But thankfully, courts have interpreted this check on government power quite liberally. When it comes to political speech, individuals can largely express even extreme positions.

For many people in government, academia and industry, this simply amounts to too much freedom. From their point of view, it leaves the barn doors open to misinformation and wrongthink. Not willing to let this stand, those who wish to control information found their solution in the massive algorithmic power and control of huge social media companies, cloud hosting providers and app stores.

These apparatchiks constructed a network to steer, shadow-ban, demonetize and even deplatform individuals and organizations, who challenge the official or prevailing narrative.

In his testimony to Congress about the Twitter Files, Journalist Michael Shellenberger said, “The censorship industrial complex is a network of ideologically-aligned governmental, NGO, and academic institutions that discovered over the last few years the power of censorship to protect their own interests against the volatility and risks of the democratic process. They are not ‘defending democracy,’ as they claim. Rather they are defending their own policy and pecuniary interests against democracy.”

 

A Monster of Our Own Making

These three supertrends have brought us into our modern predicament. The stretching of Third-Party Doctrine has punched holes through the fabric of the Fourth Amendment. The “free app” business model dehumanizes individuals and turns us into products, seeking to probe every aspect of our lives. And finally, government controllers and their co-ideologues in business and academia use all of this technology to monitor, manipulate and throttle the reach of dissenting voices.

 

Now for the Good News

What is to be done? It isn’t all bad news. The tide is in some ways starting to turn.

The courts and even legislators are starting to challenge the ever-expanding interpretations of Third-Party Doctrine. In 2018, the Supreme Court put meaningful curbs on this information vacuum free-for-all when they issued the United States vs Carpenter decision.

The case revolved around the government's warrantless acquisition of historical cell phone location records, known as cell-site location information (CSLI), from a suspect's wireless carriers. Police had used CSLI to link Timothy Carpenter to a series of armed robberies. They procured these records from Carpenter's wireless carriers without first obtaining a warrant. The CSLI provided a detailed picture of Carpenter's movements, raising concerns about the extent of warrantless surveillance.

The Supreme Court ruled that the government’s use of CSLI constituted a violation of the Fourth Amendment’s protection against unreasonable searches. Chief Justice John Roberts, writing for the majority, argued that individuals have a reasonable expectation of privacy in their physical movements, even if such information is conveyed to third parties like cell phone service providers.

The Carpenter decision marked a notable shift in how the Fourth Amendment applies to digital technology. It recognizes the evolving nature of privacy expectations in the digital age and establishes that certain forms of sensitive information, especially detailed location data, deserve heightened constitutional protection. The ruling highlighted the need for law enforcement to obtain warrants when seeking access to comprehensive and precise digital records that provide deep insights into an individual's private life.

In the wake of this decision, legislators are beginning to rightfully question the authority of government agencies to use dragnet-style surveillance to collect information on everyday citizens.

The FBI, Secret Service, IRS, Customs & Border Protection, ICE and even local law enforcement have all been discovered to be involved in the purchase of cell phone GPS location data and other information collected by the apps on our mobile devices.

In one such situation, Senators Elizabeth Warren and Ron Wyden reached out to question the IRS Criminal Investigation Unit’s purchase and use of GPS location data. In his response, the Treasury Department’s Inspector General wrote back and said that the IRS’s purchase of cell phone location data may in fact be unconstitutional, and they had “no plans at this time for using either Global Positioning Satellite (GPS) or CSLI cell phone data.”

The language is squishy and not very reassuring, but it’s a positive development to see legislators challenging and questioning agencies, and agencies doing internal reviews and even discontinuing certain practices.

 

Technology is Restoring What Technology Destroyed

There are myriad ways for individual consumers to fight back. Technology can now help individuals do what courts are too slow to do, and what government agencies are at times seeking to actively subvert.

Fighting back includes paying for the services you use. You can also search out services with non intrusive privacy policies and terms and conditions. Choosing privacy-focused products and services such as DuckDuckGo for search, Brave browser, ProtonMail email and the Unplugged UP Phone and UP Suite (our complete smartphone plus mobile operating system, app store, messenger, VPN and other privacy-first applications), are opening a path for truly reclaiming digital privacy in ways not available to consumers only a few short years ago.

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New alternative social media apps emphasizing free speech have entered the fray. Hosting services, fundraising platforms, video sharing and even digital payment processing services emphasizing “censorship resistance” and more user-centric privacy policies are all coming online.

We aren’t trapped, but we have to proactively take the reins of the tech we use, hold government entities and companies accountable and vote with our pocketbooks for a more private and free future.

Theron Harmon
CMO