Changes in technology happen very fast, and outside access to information on your personal computer or even on your Smartphone have begun raising very serious Fourth Amendment questions. Recent national events have started to address these changing areas of law, which is struggling to catch up with new technological developments. In fact, the gap between legal protections and online privacy has been called a “chasm.” In an effort to reconcile this issue, courts around the country have reviewed this question. Their conclusions are interesting.

expectations of online privacy“Privacy” is a tricky matter. It isn’t a written constitutional guarantee. It’s actually inferred through other constitutional protections. The text of the Fourth Amendment reads:

  • “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Under the Fourth Amendment, police need a warrant to enter your home and conduct a search. They cannot get a warrant without probable cause. But what about your online information? Online privacy comes with a different set of rules. Today’s digital world is rapidly expanding, and with it comes a legal grey area needing clarification.

The Supreme Court has ruled that the Fourth Amendment, safeguarded by the courts, protects reasonable expectations of privacy. United States v. Katz, 389 U.S. 347 (1967) held that a call made in a phone booth implies a reasonable expectation of privacy. “What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.” Katz, 389 U.S. at 351; see also id. at 350-51. Remember that this case was decided long before the Internet. The term “public information” means something different online.

Deleting Browser HistoryAs soon as you publish your personal information online (on your Facebook profile, or your LinkedIn account), you actually waive any “reasonable expectation of privacy.” Even if your account “private,” any information it contains is still public. Any information that you knowingly turn over to third parties (especially online) is not protected by the Fourth Amendment, and these company websites are third parties. Even Google said publicly that people have “no legitimate expectation of privacy” for information voluntarily turned over to third parties, (i.e., the internet). Unfortunately, this includes emails, uploaded pictures, text posts, ‘private’ messages, etc. Ever noticed how a product you search for online will pop up later in an advertisement on an entirely different website? Your browser and search history are often logged and tracked by third parties.

Information from your cell phone isn’t an exception, it is owned by third-party cell phone companies. Last week, the Fifth Circuit Court of Appeals ruled (read full ruling here) that if probable cause is shown, the government can obtain a warrant for your cell phone records straight from Verizon or Sprint. These records include your approximate location, times and dates of calls made, numbers called, call length, etc. This information can be extremely personal.

If you have been following recent news stories, then this subject also includes the NSA (National Security Agency), revelations by Edward Snowden, and your online information. These events are evidence of shifting privacy expectations. As technology and available data continue to change, the question of who can legitimately access that personal data becomes more and more serious.

The bottom line? Be aware of these changes. Know the laws, and how they are adapting to meet the needs of the internet age. Don’t be lulled into a false sense of security; know what information you are putting online.