Podcast Episode: Fixing a Digital Loophole in the Fourth Amendment

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Episode 003 of EFF’s How to Fix the Internet

Jumana Musa joins EFF hosts Cindy Cohn and Danny O’Brien as they discuss how the third-party doctrine is undermining our Fourth Amendment right to privacy when we use digital services, and how recent court victories are a hopeful sign that we may reclaim these privacy rights in the future.

In this episode you’ll learn about:

  • How the third-party doctrine is a judge-created legal doctrine that impacts your business records held by companies, including metadata such as what websites you visit, who you talk to, your location information, and much more;
  • The Jones case, a vital Supreme Court case that found that law enforcement can’t use continuous location tracking with a GPS device without a warrant;
  • The Carpenter case, which found that the police must get a warrant before accessing cell site location information from a cell phone company over time;
  • How law enforcement uses geofence warrants to scoop up the location data collected by companies from every device that happens to be in a geographic area during a specific period of time in the past;
  • How getting the Fourth Amendment right is especially important because it is part of combatting racism: communities of color are more frequently surveilled and targeted by law enforcement, and thus slipshod legal standards for accessing data has a disproportionate impact on communities of color;
  • Why even a warrant may not be an adequate legal standard sometimes, and that there are circumstances in which accessing business records should require a “super warrant” – meaning law enforcement could only access the data for investigating a limited number of crimes, and only if the data would be important for the crime. 

Jumana Musa is a human rights attorney and racial justice activist. She is currently the Director of the Fourth Amendment Center at the National Association of Criminal Defense Lawyers. As director, Ms. Musa oversees NACDL’s initiative to build a new, more durable Fourth Amendment legal doctrine for the digital age. The Fourth Amendment Center educates the defense bar on privacy challenges in the digital age, provides a dynamic toolkit of resources to help lawyers identify opportunities to challenge government surveillance, and establishes a tactical litigation support network to assist in key cases. Ms. Musa previously served as NACDL’s Sr. Privacy and National Security Counsel.

Prior to joining NACDL, Ms. Musa served as a policy consultant for the Southern Border Communities Coalition, a coalition of over 60 groups across the southwest that address militarization and brutality by U.S. Customs and Border Protection agents in border communities. Previously, she served as Deputy Director for the Rights Working Group, a national coalition of civil rights, civil liberties, human rights, and immigrant rights advocates where she coordinated the “Face the Truth” campaign against racial profiling. She was also the Advocacy Director for Domestic Human Rights and International Justice at Amnesty International USA, where she addressed the domestic and international impact of U.S. counterterrorism efforts on human rights. She was one of the first human rights attorneys allowed to travel to the naval base at Guantanamo Bay, Cuba, and served as Amnesty International’s legal observer at military commission proceedings on the base. You can find Jumana on Twitter at @musajumana.

Please subscribe to How to Fix the Internet via RSS, Stitcher, TuneIn, Apple Podcasts, Google Podcasts, Spotify or your podcast player of choice. You can also find the Mp3 of this episode on the Internet Archive. If you have any feedback on this episode, please email [email protected].

Below, you’ll find legal resources – including links to important cases, books, and briefs discussed in the podcast – as well a full transcript of the audio.

Resources

3rd Party Doctrine & Metadata

Third-Party Doctrine and DNA/Genetic Privacy

SCOTUS Cases and Decisions re. Third Party Doctrine

Cases re. Location Data, Privacy, and Warrant Requirements

Black Lives Matter, the 4th Amendment, and Surveillance

Transcript of Episode 003: Fixing a Digital Loophole in the Fourth Amendment

Danny O’Brien:
Welcome to How to Fix the Internet with the Electronic Frontier Foundation, the podcast that explores some of the biggest problems we face online right now, problems whose source and solution is often buried in the obscure twists of technological development, societal change, and the subtle details of Internet law.

Cindy Cohn:
Hi, everyone. I’m Cindy Cohn. I’m a lawyer, and I’m the Executive Director of the Electronic Frontier Foundation.

Danny O’Brien:
I’m Danny O’Brien. I’m also at EFF, and I guess I’m the opposite of a lawyer, whatever that is. Without giving anything away, I hope, the focus on this week’s episode is how to fix the third-party doctrine. While not everyone even knows what the third-party doctrine is, I can absolutely declare that when I learned about it, the very first thing I thought was, “Wow, this really needs to be fixed,” and yet here we are.

Cindy Cohn:
Oh, yes. We’ll go into this in much more detail with our guest. But briefly, the third-party doctrine is why courts have held that you have no Fourth Amendment protections in your metadata when it’s held by a third party, like your phone company or your bank.

Danny O’Brien:
Or a tech company, like Facebook, Google, or, of course, Amazon, which has a lot of metadata about me.

Cindy Cohn:
Yes, exactly. So, again, it’s not the content, but it’s all the other stuff, which is things like who you talk to, the websites you visit, where you are when you visit them, and how long you were there.

Danny O’Brien:
Okay. Now pretend I know nothing, and all my civic lessons at school were solely about the Magna Carta and the treacherousness of Americans. What are your Fourth Amendment protections of which you speak, Cindy?

Cindy Cohn:
Well, my British friend, I’m tempted to cue King George in Hamilton right now, because that’s kind of what you sound like. But the Fourth Amendment governs your privacy relationship with the government and specifically law enforcement’s right to grab you, and for us here today, it also governs when they get to dig through your stuff. It requires the cops to go before a judge and get a warrant and show probable cause in order to get permission to do so, and they only get to do so for some very serious crimes. The third party doctrine suspends your Fourth Amendment rights when it comes to your metadata. But clearly the person you need to talk to is our guest, Jumana Musa.

Danny O’Brien:
Jumana is the Director of the Fourth Amendment Center at the National Association of Criminal Defense Lawyers. The Fourth Amendment Center provides materials, training, and direct assistance to defense lawyers who are handling cases involving new surveillance tools, technologies, and tactics in order to create a new legal doctrine that protects constitutional rights in the digital age.

Cindy Cohn:
Jumana, thanks so much for joining us. So tell us more about the third-party doctrine and how it relates to the Fourth Amendment and why it’s such a priority for you folks at the National Association of Criminal Defense Lawyers.

Jumana Musa:
Well, thank you for having me on. I want to wish EFF a happy 30th birthday. I’m thrilled to be able to do this in the context of this particular milestone for all of you. I think EFF for so long has been at the forefront of this issue, which even before people sort of recognized it as a fundamental issue, the idea of what happens with these advances in technology, how do they impact people’s privacy rights, and so congratulations to you all for this milestone.

Jumana Musa:
So why do we care about the third-party doctrine? I guess in a nutshell, I will say it like this. We are now at a place where, because of the way things have been digitized, because of the technology that we rely on in our day-to-day life, law enforcement is able to investigate people, to accumulate information, and to utilize that kind of data and information against people in ways they’ve never been able to before.

Jumana Musa:
The issue with that is whereas previously if law enforcement decided they wanted to know where John Doe was going on any given day or to follow them to see, were they involved in X, Y, or Z crime. They would actually have to go through the process of thinking about, “Is this serious enough? Do we want to expend the resources? Do we have enough people on the force to put two or three or four officers on this to follow them around constantly 24/7?,” whereas now all they need to do sometimes is just requisition a company and say, “Can we have all the records of where John Doe has been?” or “Can we just put something on their card? Can we just find another way of doing this?”, where the technology has made it so easy for this information to both be utilized, to be scanned, to be sort of put together all kinds of different ways that it almost makes the Fourth Amendment moot, which is supposed to be not the sort of …

Jumana Musa:
I know people always think of the Constitution as your affirmative rights, like my right to privacy. But what it really is, it’s a restriction on state power, and it’s supposed to be the thing that protects you against a government who just says, “I could just decide that I want to know what John Doe or Jane Doe is up to, and I kind of feel like they’re up to no good. So I’m just going to fish through everything until I can find something to pin on them.” It’s what we used to call a general warrant, right? Which was the idea that you’re just going to pick somebody and search everything until you can find something to pin on them. That is almost the state of affairs when you look at the amount of data that comes from all the technologies and all the different surveillance tools that are out there.

Cindy Cohn:
So the third-party doctrine is judge-created, created by the Supreme Court idea that certain information that you have or that is about you is placed outside of the protection of the Fourth Amendment. The argument is that because you’ve given this information, or this information is being held not by you, but by someone else, it loses the constitutional protection. But right now, we’re living in a time, between cloud computing and our phones and the way we live our lives, that some very, very detailed information about us is held by third parties and is subject to the doctrine, everything from the telephone records to the websites you visit online to what you read online to the books you read if you use a Kindle or Audible.

Cindy Cohn:
Your ISP has metadata, too. So, it’s not just when you go to read your Gmail, but it’s the ISP that hosts you on the way. It also can include your car, if your car is connected, Internet of things. If you’ve got a smart refrigerator, what your refrigerator knows about you could be subject to the third party doctrine. It’s just a huge amount of information, and it can reveal extremely sensitive information about you and your loved ones and your community, which is why it’s on the top of our list.

Danny O’Brien:
So Jumana, just to clarify for me, so all of this data that’s stored by third parties is now stripped of its Fourth Amendment protections. Is there any kind of block there? Is there any protection, once that goes away? You don’t have to apply for a warrant anymore, but do the companies have ways of saying you only get this data?

Jumana Musa:
In theory, there’s some restrictions and guardrails. In reality, they just don’t always come through, and even with a warrant, I will say that is true. The reason for that is this. I think there are times, particularly with warrants … Law enforcement goes before a magistrate, and they say, “This is what I need.” They may not always be clear on what they’re asking, or they may just get such a broad warrant, because the magistrate may not fully comprehend what it is they’re being asked for.

Jumana Musa:
So to give an example, there was a period of time where law enforcement was using devices called … Well, people commonly call them stingrays. They’re cell site simulators. Essentially, they act like a cell tower. So it’s a device that could actually get all the cell phones in an area to, instead of going straight to the cell tower to get a signal, route first through this device that would help law enforcement locate you.

Jumana Musa:
They were going to magistrates and saying, “We need a pen register warrant,” which is basically … A pen register is like you go to the phone company and say, “I want all the to and from numbers, every number that this phone has dialed and every number that has been dialed into this phone.” That’s a very different thing than a stingray, which even has the opportunity to take the content of calls, right? But they were sort of hiding that information.

Jumana Musa:
So they may be hiding the information, or you may have people sign off on warrants where they say, “Of course. You can take all the devices and search everything,” and they sign off on that warrant, right? So even though there’s a warrant, it is so broad that it should be impermissible. So I think that’s one factor, even with a warrant.

Jumana Musa:
When it comes to companies and records, there is broad leeway in terms of the types of records that people can get with a subpoena. There are opportunities for companies to push back and say, “I think this is too broad. I don’t want to do this.” But there’s a lot involved in that, in terms of making that call, how far do you push it, the question of what’s the reason they’re being asked for it. It puts companies in a very difficult position to be the ones defending the sort of privacy rights of the person who is likely not even aware that this search is happening.

Cindy Cohn:
So just to clarify a little bit and lift this up a little bit, we think warrants are needed for this kind of metadata information, but law enforcement is able to get that information through legal processes, like subpoenas and other things. The problem is that that’s just too low a standard and often gets abused. So we think that moving metadata up into the category where a warrant is required, and I think both Jumana and I are concerned that even the warrant standard is too low for some times, but moving it from the subpoenas, which you get by pushing print on a printer, to a warrant, where you actually have to go in front of a judge, is an important step along the way to protecting your privacy.

Cindy Cohn:
So I want to talk a little bit about some of the more recent things we’re seeing. I specifically wanted to ask you about these things we’re seeing called geofence warrants, Jumana, because I think they’re particularly troubling, and they’re troubling not just from a Fourth Amendment context, but I think also from a First Amendment free speech context as well.

Jumana Musa:
Absolutely. So we have been involved in geofence cases at the Fourth Amendment Center, and I think people don’t fully understand the way in which their information is being utilized. So to give people a sense of what is what we’re calling a geofence warrant, it is when there’s a crime that law enforcement is investigating. Somebody stole widgets from a factory, and in order to investigate this crime, they’re trying. They’re looking. They have no leads. They have no suspects, and they have no avenue towards a lead or a suspect.

Jumana Musa:
So what they do in that moment is they say, “Okay, we’re going to go to Google, and we’re going to say, ‘Please tell us all of the phones that have connected in this geographic region, say 150, 250 feet, within this hour or two hour-span of time.'” So that maybe sounds not invasive, but you could actually go on our website. We have a series of documents in the Chatrie case, which is one that we’ve been working on.

Jumana Musa:
In one of them, Google actually filed an affidavit where they said that in order to go through that process, in order to figure out what phones may have been in this small geographic area in this couple of hour timeframe, they first have to search numerous of tens of millions of records. So the first step in this process is to actually search across all of their location history database of all of the people have connected anywhere to be able to identify who’s been connected in that one geographic area.

Danny O’Brien:
Just to heighten this, right, so you talked a bit about general warrants, which I understand King George did, and I’m very sorry about that. But the difference here is that the Fourth Amendment warrant is aimed at a particular … It’s specific to a particular person, and that’s to try and stop this fishing expedition idea. But when you talk about geofencing, if someone was to use this geofencing warrant, say, at a protest, right, that would mean that they would be essentially scooping up the identities of everyone who was at that protest, right?

Jumana Musa:
Absolutely. So, I mean, I think there’s two different ways that people can get everybody at a protest, right? In this context, I think the first step is already you have to search numerous tens of millions of records to figure out who’s connected within that timeframe. But in the context of a protest, you’re absolutely correct in the sense that they can say, “This thing happened, and that was a serious crime,” whatever the thing is. “In order to charge a serious crime, we need to identify who was there,” and to identify who was there, I will also tell you, in the context of this back and forth with Google, they’re supposed to hand over information that is anonymized and then go through a back and forth with law enforcement to get to a place where they may de-anonymize a few number of people.

Jumana Musa:
But having seen it up close, the anonymization is not so anonymous, and the idea that you can go and get the information of everybody who’s connected in the context of a demonstration because somebody may have burned something or something may have been vandalized is extremely concerning, because that’s a hugely powerful tool that can be really dissuasive to people who are feeling like they should be able to go out and exercise their First Amendment rights for whatever it is.

Cindy Cohn:
Yep. I think that’s right. Well, our goal today is to talk about fixing the Internet and how we fix things. So let’s switch a little bit our focus. I want to talk a little bit about, you mentioned earlier that we’re chipping away at the third party doctrine. I actually even started out this by saying that I was quite confident that we were going to chip it down even further in the next few years. So where are we in terms of what the third party doctrine reaches right now and where we’ve won some victories?

Jumana Musa:
We’ve seen it come up in a few different ways, and it’s sort of evolving. So the three cases that we always talk about are the Jones case, which was 2012, where essentially what they were looking at was, they did get a warrant to put a tracker on someone’s car. They had ten days to get the tracker on the person’s car. They didn’t put it on until the eleventh day, so you’re already outside of the window of the warrant, and then they left it on there for 28 days.

Jumana Musa:
Part of the argument is, “Well, the car was out driving around on public roads. That is not private. You don’t have a right to privacy on public roads. Anybody can see you.” That is certainly true. At the same time, what the court found was doing it outside this window meant you were outside of the warrant, and you did it for 28 days, which is, you do have an interest in your location over time, because that is very revealing, right? That’s one of the things the court came to. They were very focused in the majority opinion, which was unanimous. It was an unanimous opinion, but in the majority, they were very focused on the trespass of having put the tracker on the car.

Jumana Musa:
So if we fast-forward a couple of years, there was another case which was not location tracking, but it was a question of the amount of data that is gathered with digital devices, and that’s the Riley case in 2014. What that case basically said, at the end of the day, there used to be the idea that if you’re arresting someone, maybe you stop the car, you decide you saw contraband, something happened, you’re now arresting the person who was driving the car.

Jumana Musa:
What this case was about was the idea that if you arrest someone in that scenario, can you then open their phone and start to go through their phone? This is when smartphones are really starting to be widely used. What the court said is no, that is not the same thing. It is not a container. In fact, it contains all of the privacies of life. It has your emails and your photos and all this other information. As such, it is treated differently. So that was sort of the next step.

Jumana Musa:
The most recent stuff we’ve seen is the Carpenter case in 2018. So this case was a case where they were trying to tie people to a series of robberies, and they went through and looked for their historical cell site location information. So what that means is everywhere you go with your smartphone, it pings off of towers. It pings off of all kinds of things and creates a little digital trail of where you’ve been. It’s not exactly where you’ve been. It doesn’t say, “You were exactly in the spot, and then you walked ten steps over here,” but it can locate you over time.

Jumana Musa:
The argument was, this was third party records, right? I mean, this is the phone company’s records. You don’t have an interest in that. There’s no privacy interest. So what the court found in that was actually, you do, and they did not say there was no longer a third party doctrine. They said there is. It just doesn’t apply here. So basically what they’re saying is tracking you all over the place gives a lot of information about your very personal things. If you worship, it will say where you’ve been, what kind of doctor you’ve been to, if you go to AA meetings. It can locate you at a lot of sensitive places.

Jumana Musa:
But one of the arguments that was being made was, “Well, the technology back at the time this case happened wasn’t that precise. It only could generally locate people.” But the court said, “We hear that, but it’s already better, and it’s only going to get better. So the idea that we’re going to sort of decide this, looking back at the old technology, is not of use to us.”

Cindy Cohn:
I think that’s exactly right. So when we think about the third party doctrine, I think we’re making great strides in terms of protecting your location, especially your historical location over time. We’re taking strides to say that just because you have a phone in your hand doesn’t mean everything that’s on that phone and everything you can get through that phone, like going to Facebook or any of those kinds of things, is not available to you. Then we’ve got both the cell phone towers and the car case to indicate this idea that where you travel over time should be protected. So that’s what I mean, I think, when we talk about when we’re chipping away at it.

Cindy Cohn:
So let’s fast forward. We’re into, now we’re fixing it. So what’s the world going to look like if we fix the third party doctrine, Jumana? How is my world going to change? How are your clients’ worlds going to change? How does a protestor who wants to go out in the street … How’s our world going to be better if we fix this thing?

Jumana Musa:
So I think we’re going to be better because we are going to reclaim some of our anonymity, right? I don’t think that’s something that people think about consciously, but part of it is if I just go walk down the street and I’m not in my neighborhood where everybody might know me, I might run into someone I know, but I might not see anybody I know, right? I could just be wandering down the street, looking in windows, looking at other people, thinking about life, doing whatever I’m doing. Nobody necessarily knows where I am.

Jumana Musa:
Historically, that’s how it’s been, right? You just walk off somewhere. Unless you physically run into somebody, there isn’t necessarily a thought of where you are, and clearly that’s not going to be possible in the digital age, where it’s comprehensively like that. But to get some measure of that back, of that sort of anonymity, that control over your location, your movement, your idea of privacy from the government I think is really critical.

Jumana Musa:
So sort of looking forward, what does it look like? It looks like restricting government from being able to access these things writ large. I know sometimes people talk about, “Get a warrant.” I’ve often said, “I know we say that, and it’s great when at least they get a warrant, because there is that place where at least there’s a judge or a magistrate,” because the magistrate honestly doesn’t actually have to be a judge in every state. It’s not the same, but they may just have to have a college degree, right? So I don’t want to make assumptions. But there is at least a person that may stand in the way and say, “Wait a minute, this doesn’t look right. This looks too broad. You have to scale this back.”

Danny O’Brien:
One of the visions I have for the future that is different from where we are now is that I feel that people have a generalized blanket anxiety about the data that they’re giving to companies, and I think part of that anxiety comes from not knowing what’s going to happen to it. I think one of the protections that a warrant gives you is you don’t feel like data is going to be dug up on you if you’re innocent or an innocent passerby, and I would like some clarity in the law that surrounds me that that isn’t going to be the case.

Jumana Musa:
Well, coming from where I’m coming from, I’m going to say just because they’re digging up the data, that doesn’t speak to your innocence or non-innocence at all, right? It just speaks to their desire to investigate it. But I think that’s true. I think that’s very true, and I think we have sort of competing problems. One is it is hard to know just how much of your data is being gathered, right? I mean, I think some people who are deep in the weeds may have a really good sense. Most people don’t really know, and I think when you compound that with the fact that there aren’t really laws that restrict or govern that very well and then you add on top of that the fact that there’s not a lot of things you can get anymore that aren’t gathering data.

Jumana Musa:
For me, I use the example of, I drive a ten-year old Subaru, and it is low-tech. My kids tell me that all the time, right? I can’t connect my phone to my car. I can’t do this. I can’t do that. I can’t do anything that their friends’ parents’ cool cars do. What I know is right now, it’s a Subaru. So it’s going to last a long time. I appreciate that. It’s got 100,000 miles on it. Eventually, I’m going to have to replace it, and by then, it is highly unlikely I’m going to be able to find a car that isn’t connected in that way, that doesn’t gather more data in that way, and it’s true of all the things we’re getting, smart appliances. You can’t get a home security system that’s sort of the old school that tells you if someone has opened the door or broken a window. So all of these things, the way they’re developing that have positive aspects, they’re developing ways to gather data, and data is really what companies are seeking.

Cindy Cohn:
Well, I think so. I would say, to me, this vision that you’re bringing out around especially specifically the third party doctrine is really one of the presumption of innocence and, as you said, the presumption of anonymity, that what I read on what websites, what social media I have, who I’m friends with, who I’m not friends with, who I might spend the night with, who I don’t spend the night with, what books I read, who I talk to, which way I talk to them, this is all information that ought to be under my control and that law enforcement needs to have a darn good reason to get access to. By darn good reason, I mean a darn good reason presented to somebody in a black robe who’s going to evaluate this.

Cindy Cohn:
So to me, the end of the third party doctrine really resets our relationship with the government first. I think you’re right. We still have to talk about companies, and we will do that as well. But this is about reclaiming the right of people to be secure in their papers and their effects against unreasonable searches and seizures. What we do in our lives, who we talk to, where we go, whether we’re window shopping or seriously buying or whether we’re just talking to a friend or whether we’re researching an illness that we’ve heard a loved one had, we deserve to have a zone of protection against the government rummaging around in that information, because we might’ve made somebody mad or because we happen to have a friend who made somebody mad. I often say to people that just because you’re never going to face … Maybe law enforcement isn’t going to come looking after you doesn’t mean that you don’t know anybody who is at risk. I think especially for people of color in our society right now, it doesn’t need to be said.

Jumana Musa:
So Cindy, actually, I’m glad you said that. I think it needs to be said out loud, and I think the thing that people need to remember is that surveillance isn’t new in society. Surveillance has been happening as long as there’s been society, and it’s been targeted largely at people of color, at people who dissent, at people who don’t sort of go with the mainstream power structure. So people of color have been under scrutiny in this country since there’ve been people of color in this country, and particularly black people, but we can’t sort of let that piece off.

Jumana Musa:
As we’re in this moment where we’re looking at policing in America, where Black Lives Matter is at the forefront, as it should be, we should also recognize when we’re talking about these surveillance tools and technologies they are always going to be more heavily implemented in these communities, in communities of color, in low-income communities. They’re going to be targeted towards black people. They’re going to be targeted towards immigrant communities. That doesn’t mean that there is no spillover effect into more affluent communities, into white communities, but the breakdown is no different than it is anywhere else in our criminal justice system.

Jumana Musa:
So I think that’s a particularly acute point, even when you’re talking about First Amendment rights, right, and the ability to protest. So I think that that needs to be a fundamental part of this conversation. Even if it never touches you or someone you know, if you care about those things, you should still care about this.

Cindy Cohn:
I think this is exactly right. Setting the Fourth Amendment right is part of standing up for Black Lives Matter. It’s part of standing up for fairness in our society, because we know that the people who need these protections, the people who end up being overwhelmingly targeted by law enforcement are people of color. So standing up for protecting people’s rights to just go around in the world, free of being vulnerable to surveillance is really a piece of the broader part of our efforts to try to make society less racist.

Danny O’Brien:
I’m hearing from both of you is that there is real progress happening on the court side, that we have this progressive recognition that the third party doctrine has to be reformed, and actual kind of concrete steps to that at the Supreme Court level. It sounds to me that this is a race between the courts coming to terms with new technology and also the advance of that technology itself.

Danny O’Brien:
One of the things that I remember from listening to the lawyers talk about this at EFF was an incident where the companies were getting so tired of getting these requests, the telcos in particular, that they wrote some tools for law enforcement to get this information more easily, right? They automated the process of getting this data. For me, that’s one of those terrible kind of downhill progressions, where it’s inevitable that if there’s no legal speed bumps to getting this data, the take is that geeks like me are just going to grease that path, right? We’re going to spiral from these arguments that are sort of like this is a specific warrant, but it’s a little non-specific to a world where mass surveillance is just presumed and these companies actively are helping out the governments with it.

Cindy Cohn:
Yeah, I think it’s a tremendously important point. It’s one of the reasons why the third party doctrine has been on our hit list for a long time, because, again, I completely agree with Jumana that simply requiring a warrant doesn’t get us everywhere we need to go. But when you get rid of the idea that a judge needs to be in the middle of it, you do end up with things like this portal where you could upload a recipe and it would open the portal to letting law enforcement have access to people’s phone records.

Cindy Cohn:
We know from the Snowden documents on down that telephone records can be tremendously sensitive. They know if you’re standing on the Golden Gate Bridge calling the suicide hotline, or whether you’re calling the Planned Parenthood, or whether you’re calling the local gun shop. Your phone records, even without knowing what you say, your telephone records, the websites you visit, the social media, all of your metadata can be tremendously revealing. Making sure that there’s a lot of friction for law enforcement, such that they have to have a good reason and be able to demonstrate it, and demonstrate it to somebody other than themselves, before they get information about you is one of the ways that we keep the balance between us and our government in the right place.

Danny O’Brien:
Jumana, can I just ask, what is the next step? So what comes after Carpenter, what are organizations like you doing in the public litigation space to move this ahead?

Jumana Musa:
Well, I think one of the things we’re doing is looking at all the parameters that were put into Carpenter and trying to operationalize them in other circumstances, right? Because it’s a question of, do you have to have all of those things? Does it have to be of a deeply revealing nature, and the depth, breadth, and comprehensive reach of it all and the inescapable and automatic nature of the collection? Can it be two of those things? Can it just be one of those things? So we’re trying to look at it in every aspect, in terms of whether it’s a tower dump, where they say, “Something happened in this area, and we want to get the information on all the cell phones or devices that have connected to this cell tower within this period of time,” or is it a geofence warrant, or is it some other way that they’re gathering it to try and take it and start to apply these? Of course, one of the high ones on the hit list, they looked at historical cell site location in Carpenter, but how does it apply to real-time tracking?

Jumana Musa:
So, I mean, I think it’s really important to think creatively about all the places this may apply. Of course, the end goal is what Cindy said. It is to get rid of the third party doctrine, which really has limited utility in the digital age. So I think in that context, really sort of for us in this space, that is one of the end games, but really, it’s about trying to carve out what privacy means in the digital age, right, the question of, do you have privacy in public? It was a very different assessment years ago, when you said, “Of course you don’t. You’re out, and you’re walking around. People can see you.” But now if you’re out and you’re walking around and your phone can track you and you’re showing up in surveillance cameras, and maybe they’re connected to face recognition and something else, it’s sort of gotten to be such a comprehensive surveillance that we really need to fight to claw back what privacy means, what privacy is protected, and how we can go about our lives in a way that is free of government intrusion.

Cindy Cohn:
Yep. Thank you so much, Jumana. Of course, EFF will be with you guys every step of the way. One of the big things that NACDL does is make sure that all of the defense attorneys across the country, who you might need someday, have access to these arguments and these skills. We love working with you, and we’re all together in this effort to try to keep chipping away at this doctrine until it is just a tiny little remnant of another time when phone records were not nearly as invasive as they are now. So thank you so, so much for taking the time to talk with us. Third party doctrine, definitely need to fix it. Now we know why.

Jumana Musa:
Well, thank you for having me. I’ll say it’s a mutual love affair. We are frequently referring people to EFF and utilizing the information that you all put out. So thank you very much.

Danny O’Brien:
Thank you.

Danny O’Brien:
Okay, I found that really fascinating. I think one of the bits that leapt out for me is how, actually, technology, by removing friction, by making particular processes easier, including getting access to this data, actually transforms how invasive it can become, with the government being able to just kind of press a few buttons and then pull out as much metadata as it wants without a warrant.

Cindy Cohn:
Yeah, I think that’s right. I mean, one of the reasons why we really want to get rid of the third party doctrine is because we need law enforcement to basically do the work and make the showing before they get access to this information, because it’s far more revealing than it was when this doctrine was first created, and there’s a lot more of it.

Cindy Cohn:
One of the things that Jumana mentioned that I think is important as well is that she said sometimes we may need to get more than a warrant. A warrant might not be enough. Lawyers like us are talking a lot more, and there are situations already when you have to get a super warrant, which is basically much more limited in the crimes that it can apply to, and the data has to be important to the crime. So I think we’re beginning to move a lot of things towards warrants, but I think also in this age, when so much of our information is available and in the hands of third parties, we might need to think beyond warrants as well. I think that was a good point she made.

Danny O’Brien:
I think the other thing that comes out of this conversation is that … You pointed this out, that pervasive surveillance is not a theoretical threat. It’s in particular a threat that is already being felt by disenfranchised groups, right? Groups that don’t get to speak up traditionally in the sort of political debate, and that includes, in the United States, communities of color and so forth.

Cindy Cohn:
Yeah. I mean, I think it’s really clear that if we care about Black Lives Matter, that means we have to get the Fourth Amendment right, because people of color are disproportionately targeted by this kind of surveillance. Even if they’re not targeted, they’re disproportionally impacted by it.

Danny O’Brien:
That’s a really good point. I think it’s even more important when we realize that the presumption of privacy, I think, has been flipped because of the amount of metadata that is collected about us. If I walked down the street in the 1970s, I think it would have been pretty unusual for me to be followed around by someone or data about me to be collected in any way. Now every moment we spend in public is surveyed and recorded in some way. That data is just sitting there, waiting to be accessed by a company, but then indirectly by the government asking that company to hand over the data.

Cindy Cohn:
Yeah, I think that this is one of the situations in which the realities of the world have really changed and a doctrine and that used to be kind of annoying and innocuous has become a really, really big problem. I think the fundamental problem at the bottom of the third party doctrine is it confuses secrecy and privacy. It really takes the position that if even one other entity knows this, something about you, in these instances, your ISP in order to make sure that your phone rings where you are, that that somehow waives your Fourth Amendment rights and is equated with you kind of taking out a billboard and putting it on the side of the highway. But secrecy and privacy are not the same things, and there are many situations in which we need to stand up for privacy, even when something isn’t completely secret. To me, I think the third party doctrine is one of those situations.

Danny O’Brien:
So are you optimistic or pessimistic about where we’ll be with the third party doctrine?

Cindy Cohn:
I think this was a hopeful conversation, and it was a hopeful conversation because, as Jumana laid out, we have three solid Supreme Court decisions moving away from this kind of absolute rule that the third party doctrine had represented, or at least had been argued by the Justice Department. It’s a judge-made doctrine. The third party doctrine doesn’t exist in statute. So the judges can take it away, can decide that it is no longer applicable. Again, we’ve got three solid Supreme Court decisions where the third party doctrine was argued by the government on the other side, and the Supreme Court rejected that argument and said, “No, we need to care about privacy more than that.” So that’s very hopeful to me, and it’s why I think that the third party doctrine is one of the things that needs to be fixed on the Internet, but it’s the one where I’m quite hopeful that we’re going to get it fixed.

Danny O’Brien:
Well, I always like to end to on an optimistic note. So I think I’ll declare that’s all we’ve got time for. See you next time.

Danny O’Brien:
Thanks again for joining us. If you’d like to support the Electronic Frontier Foundation, here are three things you can do today. One, you can hit subscribe in your podcast player of choice, and if you have time, please leave a review. It helps more people find us. Two, please share on social media and with your friends and family. Three, please visit eff.org/podcasts, where you will find more episodes, learn about these issues, you can donate to become a member, and lots more. Members are the only reason we can do this work. Plus, you can get cool stuff like an EFF hat or an EFF hoodie or even a camera cover for your laptop.

Danny O’Brien:
Thanks once again for joining us, and if you have any feedback on this episode, please email [email protected]. We do read every email. This podcast was produced by the Electronic Frontier Foundation with help from Stuga Studios. Music by Nat Keefe of Beat Mower. 

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