Over Memorial Day weekend, 105 undergraduate, graduate and law students convened at Washington State University in St. Louis to discuss the shortcomings of the U.S. Constitution and imagine creative solutions to make laws better. The last official federal constitutional convention convened in 1787, and leaders have yet to meet officially since then.
From the 20 submitted amendment proposals, three of them aimed to address the lack of protections for digital privacy. When drafting the Constitution, the Founding Fathers could not have anticipated the rapid expansion of surveillance and data collection, and the Fourth Amendment desperately needs to include language to protect individuals from new forms of government overreach.
Under “Riley v. California” (2014), the Supreme Court unanimously ruled that police generally must obtain a warrant to access records and data from a private individual’s phone. Under “Carpenter v. United States” (2018), the Supreme Court ruled that courts also need to obtain a warrant to access historical data. These rulings have been in line with traditional Fourth Amendment interpretations to keep private individuals’ information and property safe from unreasonable searches and seizures.
However, one glaring loophole remains, weakening all aforementioned protections against government overreach. The third-party doctrine under the Fourth Amendment rules that individuals lose their reasonable expectation of privacy in any information they consensually share with third parties. This has been used to refer to bank information, phone records and internet search records.
The third-party amendment allows for the government to work with third parties to receive personal information or surveil individuals without a warrant, as long as it was once voluntarily shared with the site. So what does that actually entail?
People currently mail in their personal DNA to sites such as 23andMe; people rely on Alexa or other smart home devices to ask everyday questions, not noticing the microphone that is attached; people store important information and documents on Google, iCloud and Microsoft Teams. These are all technically under the third-party doctrine and can be subject to government surveillance.
By adding an explicit mention of informational privacy into the Fourth Amendment, this would protect all persons from unreasonable surveillance by the government, and it could only access information after a warrant has been issued by a judge.
Government agencies such as the National Security Agency, Federal Bureau of Investigation and Department of Homeland Security often collect bulk data from private third parties to monitor communication and activities of the general population. This policy overwhelmingly lacks checks and balances, and it currently allows for indiscriminate tracking.
Flock Safety, which has been a prominent company used for public safety technology to read license plates and a thorough video surveillance system, has been instated by over 5,000 communities – including Eugene at one point.
Community residents were quick to point out that local police departments could choose to share community members’ data with a national database, which can then be accessed by Immigration and Customs Enforcement or Customs and Border Protection. The ACLU of Oregon heavily pushed back on this and advocated for Eugene to have their contract cancelled, because a national database that is shared with ICE would inherently break sanctuary state laws.
Although the issues with Flock in Eugene have been addressed, states either need to adopt a constitutional amendment protecting their community members from data sharing, or the U.S. Constitution needs to adopt phrasing to protect everyone from government overreach in data sharing.
