Nader, Onassis, and Jones: Privacy in Public and Limits on the Private Sector

The GPS case – the Supreme Court’s decision in U.S. v. Jones – raises a whole host of issues about privacy in public. The case was about the Fourth Amendment and the government’s ability to follow individuals on public roads. Of the three opinions in the case, that of Justice Sonia Sotomayor’s was the most interesting and, potentially, the furthest reaching.

Sotomayor asked “whether people reasonably expect that their movements will be recorded and aggregated in a manner that enables the Government to ascertain, more or less at will, their political and religious beliefs, sexual habits, and so on.” Sotomayor and all the other justices found limits in the Fourth Amendment. I want to look more broadly.

The Fourth Amendment establishes the boundary for government action, but it does not constrain the private sector. What happens if the government cannot follow people because of Fourth Amendment restrictions but the private sector can? After all, what good is the Fourth Amendment if a private company can follow you down every street and sell the information to marketers, profilers, and government agencies too?

Sotomayor raised this question indirectly when she questioned existing case law that holds that an individual has no expectation of privacy in information given to banks and other third parties:

More fundamentally, it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties. E.g., [Smith v. Maryland442 U.S. 735, 742 (1979)] United States v. Miller, 425 U. S. 435, 443 (1976). This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks.

Many in the privacy community stood up and cheered when reading these words. Privacy advocates were critical of the Miller decision from the start. Much more so than in 1976 when the Court decided Miller, we live in a world where much of our personal information is held by third parties, including banks, schools, utilities, supermarkets, credit bureaus, credit grantors, and Internet providers of goods and services. Many of us live our lives on the Internet and in the cloud. Amazon, Microsoft, Google, EBay, and other companies have our aggregated, detailed data in their files. The issues here are major, and I need to shed complex issues cavalierly as we proceed.

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