You might not think about the Fourth Amendment while you’re using Facebook and other online tools, but you probably should.
You are no doubt familiar, now, with Facebook’s concept of “frictionless sharing.” You enable a social reader like the one from the Washington Post and the next time you read an article on the site, news of that textual encounter is broadcast to your Facebook friends.
It is so easy. It seems so simple. But it could also create a fundamental shift in the way that judges view people’s expectations of privacy online.
That’s the argument that Margot Kaminski, the executive director of Yale’s Information Society Project (and sometime Atlantic contributor), makes in an intriguing new article in Wake Forest Law Review.
In Fourth Amendment cases, the Supreme Court has to determine what “a reasonable expectation of privacy” actually is. If you do have that expectation of privacy, then the government needs a warrant to look into your communications. So, if you go out in the public street and shout to the world that you committed a crime, the government does not need a warrant to use that communication. However, if you were to send a sealed letter to a friend containing the same information, you would have a reasonable expectation that the government would not be reading that note.
Because we’re talking about expectations, we have to think about what cultural norms are and the actions that signal what norms are in play. For example, Kaminski notes, “In the 1967 seminal Supreme Court case on wiretapping, Katz v. United States, Katz placed a phone call in a public phone booth with the door closed, and was found to have a reasonable expectation of privacy in the phone call, so a warrant was required for wiretapping the phone.” Closing the door meant he expected the call to be private.
And the problem with frictionless sharing is that it may leave the door open for the government to collect and use information without a warrant.
“Justice Alito recently contemplated that we may be moving toward a world in which so many people share information with so many friends that social norms no longer indicate a reasonable expectation of privacy in that information,” Kaminski writes. “Without a reasonable expectation of privacy, there will be no warrant requirement for law enforcement to obtain that information. This analysis is troubling; sharing information with your friends should not mean that you expect it to be shared with law enforcement.”
Kaminski thinks Justice Alito’s analysis is dangerously wrong. “This would be like saying that just because you sent wedding invitations to 500 of your closest friends, the government is justified in opening the envelope. The size of the audience for private communication should not change the fact that it is private.”