{"id":16838,"date":"2018-07-28T16:10:38","date_gmt":"2018-07-28T21:10:38","guid":{"rendered":"http:\/\/huewhite.com\/umb\/?p=16838"},"modified":"2018-07-28T16:10:38","modified_gmt":"2018-07-28T21:10:38","slug":"protecting-your-digital-trail","status":"publish","type":"post","link":"https:\/\/huewhite.com\/umb\/2018\/07\/28\/protecting-your-digital-trail\/","title":{"rendered":"Protecting Your Digital Trail"},"content":{"rendered":"

Sharon Bradford Franklin on Lawfare<\/strong><\/em> discusses<\/a> the impact of\u00a0Carpenter v. United States<\/em><\/a> (2017):<\/p>\n

Writing for the majority in\u00a0Carpenter v. United States<\/em><\/a>,\u00a0<\/em>Chief Justice John Roberts called the court\u2019s momentous Fourth Amendment decision \u201ca narrow one.\u201d The specific holding\u2014that a warrant is required for law enforcement to access historical cell site location information (CSLI)\u2014may indeed be narrow, and the decision rightfully cautions that \u201cthe Court must tread carefully\u201d when considering new technologies. Yet, despite its limited scope, the opinion provides a framework for recognizing that the digital trails Americans create through their daily lives are protected by the Fourth Amendment. The decades-old \u201cthird-party doctrine,\u201d under which Fourth Amendment rights are extinguished whenever individuals share their information with third parties such as banks and telephone companies, has appropriately been confined to the pre-digital age scenarios in which it arose.<\/p>\n

As others have\u00a0already<\/a>\u00a0argued<\/a>, the\u00a0Carpenter\u00a0<\/em>decision does not provide a clear legal standard for when the Fourth Amendment applies to data shared with a third party, and it raises many questions about the future of Fourth Amendment doctrine. But the decision does offer a resounding declaration that Fourth Amendment analysis must take account of the \u201cseismic shifts in digital technology\u201d and the power of modern surveillance tools. In particular, the\u00a0Carpenter\u00a0<\/em>decision should foreclose, once and for all, any claim that bulk surveillance of Americans\u2014or bulk collection of their digital records\u2014would be constitutional. Through the\u00a0USA\u00a0<\/a>Freedom<\/a>\u00a0Act<\/a>\u00a0of 2015, Congress ended\u00a0the government\u2019s bulk telephone records program, known as the Section 215 program,<\/a>\u00a0and provided new authority for collection of call detail records using a \u201cspecific selection term.\u201d With reauthorization of this act to be considered next year,\u00a0Carpenter\u2019s\u00a0<\/em>analysis should preclude any attempt to retreat from the narrowing of surveillance authorities achieved under the 2015 law.<\/p><\/blockquote>\n

And so the judiciary is not insensitive to the implications of digital media and how they differ from other collectors of your information. I think this is as important as does Franklin, although it’s taken the courts 30-40 years to figure it out. I recall, back in the early to mid 1980s, a course in college concerning computers and society, and one of the hypotheticals of the day was using computers to track your purchases, and making deductions from that – and the computer’s recommendation that cash be extinguished so that the tracking would be more comprehensive. Not so different from this, is it? Of course, you can’t rule on hypotheticals … can you?<\/p>\n","protected":false},"excerpt":{"rendered":"

Sharon Bradford Franklin on Lawfare discusses the impact of\u00a0Carpenter v. United States (2017): Writing for the majority in\u00a0Carpenter v. United States,\u00a0Chief Justice John Roberts called the court\u2019s momentous Fourth Amendment decision \u201ca narrow one.\u201d The specific holding\u2014that a warrant is required for law enforcement to access historical cell site location \u2026 Continue reading → <\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"nf_dc_page":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[1],"tags":[],"class_list":["post-16838","post","type-post","status-publish","format-standard","hentry","category-uncategorized"],"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/huewhite.com\/umb\/wp-json\/wp\/v2\/posts\/16838","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/huewhite.com\/umb\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/huewhite.com\/umb\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/huewhite.com\/umb\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/huewhite.com\/umb\/wp-json\/wp\/v2\/comments?post=16838"}],"version-history":[{"count":1,"href":"https:\/\/huewhite.com\/umb\/wp-json\/wp\/v2\/posts\/16838\/revisions"}],"predecessor-version":[{"id":16839,"href":"https:\/\/huewhite.com\/umb\/wp-json\/wp\/v2\/posts\/16838\/revisions\/16839"}],"wp:attachment":[{"href":"https:\/\/huewhite.com\/umb\/wp-json\/wp\/v2\/media?parent=16838"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/huewhite.com\/umb\/wp-json\/wp\/v2\/categories?post=16838"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/huewhite.com\/umb\/wp-json\/wp\/v2\/tags?post=16838"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}