All Tech Considered
1:03 pm
Wed October 2, 2013

Your Digital Trail: Does The Fourth Amendment Protect Us?

Originally published on Wed October 2, 2013 7:56 pm

This is the third story in our four-part series examining your digital trail and who potentially has access to it. It was co-reported by G.W. Schulz from the Center for Investigative Reporting. Yesterday, we examined how data-tracking companies are monitoring your online behavior. Today we look at your Fourth Amendment rights.

Science-fiction writers have fantasized for years about the government monitoring everything we do. For example, there's a classic scene in the 2002 movie The Bourne Identity, which portrays young government agents glued to computer monitors in a crowded room. In seconds, they are able to track almost everywhere Jason Bourne, the main character, has been and where he's going — his flights, train trips and hotels.

One agent gets a photo of Bourne talking to a woman in an alley from a surveillance camera hundreds of miles away. Almost instantly, they identify her, apparently using facial recognition software, and pull up the digital records of her life — including her family biography and her utility bills from three countries.

The woman is just a bystander, but the movie suggests that the minutiae of someone's life can make anyone look guilty.

"I don't like her," the unit chief mutters. "I want to go deep. I want to know every place she's slept in the last six years."

Back in the real world, could government agents really sit in a room and gather that information in 60 seconds or less? "No," says Kevin Bankston, senior attorney with the nonpartisan Center for Democracy and Technology. But "that is the world we're moving toward."

He says one reason is the digital revolution itself. For instance, Facebook uses software now that identifies people from photos. Stores are reportedly using facial recognition programs, so the staff can learn the names of customers almost the moment they stroll through the door.

Bankston says there's another reason the government is beginning to obtain digital records faster and faster — if not yet instantly as it does in movies: The laws that regulate the government were written back in the analog age, so the government often doesn't have many legal restraints. America's founders were not thinking about computers when they wrote the Bill of Rights.

Rights Under The Fourth Amendment

The Fourth Amendment of the Bill Rights, ratified in 1791, has traditionally been Americans' "principal constitutional protection against government spying," says David Cole, a lawyer who teaches constitutional law and national security at Georgetown University. As the amendment states, "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated."

But Cole and other legal analysts say the world of computers has weakened the Fourth Amendment. "In the modern digital age," he says, "it means very, very little."

Here's why: Let's say the police or FBI wanted to gather intimate details about your life back in the old days — meaning, before computers came along. Whom are you meeting? What are you reading? What are you writing in your diary? What kinds of products have you been buying? Where are you going to travel and where will you stay?

One of the best ways to get that information would have been to search your home, bug it and wiretap your phone. Based on the Fourth Amendment, that meant the police would have needed a search warrant. And to obtain a warrant, law enforcement officers must convince a judge that they have probable cause that the place they want to search, or the person they want to bug, is likely to reveal evidence of a crime.

But since the 1960s and 1970s, the Supreme Court and other courts have issued a series of rulings declaring that the government does not need a search warrant to obtain your personal documents if you have already shared them with somebody else. For instance, since you allow your bank and credit card company to know what you buy, and since you let your phone company know whom you call, you can't claim that information is private. It's the legal version of the lesson you learned when you were 12 years old: If you don't want everyone else to read your diary, then don't show it to anybody.

In the wake of those court decisions, the digital revolution came along. And many of the most intimate details of your life that you used to protect at home morphed into digital documents — which are stored on someone else's computers.

"When I send an email, I've shared it with the Internet provider," Cole says. "When I search the Web, I've shared it with the Web company. When I walk around with my cellphone, I'm sharing with the cellphone company my whereabouts. All of that information has lost its constitutional protection, and the government can get it without having to make any showing that you're engaged in illegal activity or suspicious activity."

So in this digital age, police often do not need to show probable cause of a crime when they want to find out details about your life that they used to find in your home. Instead, they can get your private files from corporations that store your records on their computers.

And instead of a search warrant, the police might just need a subpoena — which is "trivially easy to issue," says Bankston of the Center for Democracy and Technology. Law enforcement doesn't need a judge's approval to obtain subpoenas — prosecutors can sign them on their own, as can authorized employees at federal and state agencies. And law enforcement agents don't need evidence that there's likely a crime. They need only to be able to show that the records they want are relevant to an investigation.

The Ease Of The Subpoena

Cory Borgeson, president of the Golden Valley Electric Co. in Fairbanks, Alaska, told NPR he is stunned at how easily the government can obtain personal information with subpoenas. For instance, agents at the Drug Enforcement Administration wondered if some of Golden Valley's customers might be making or growing drugs in their homes. Drug dealers sometimes use more electricity than normal, and their power consumption records can potentially be a clue. So the DEA served a subpoena on the utility, ordering it to turn over detailed digital records on its customers' electricity use, bank and credit card accounts, and other information. Borgeson says the standard for getting a subpoena is so low that it's essentially "one agent turning to [his or her colleague] and saying, 'Would you please sign this administrative subpoena for me so I can get information?' "

Golden Valley tried unsuccessfully to block the subpoena in court by arguing that the government needed a search warrant. "We think at Golden Valley that what we sell to our members, and that's electric kilowatt hours, is really private," says Borgeson. He says the digital age has made the customers' records far more extensive and revealing than they were in the days of paper bills and file folders. For instance, it's so inexpensive to store digital files that the company keeps records for years longer than it used to. And Borgeson says those records can reveal personal information that has nothing to do with a crime, from how many people live in your house to whether you run a business that might be legal, but which grumpy neighbors might protest if they found out about it.

"Some people might think that ... it's not terribly sexy that we know how many kilowatt hours you use in a day or a month or a year," Borgeson says. "But it's kind of like looking at you through an open window and seeing what you do in your home."

Access To Your Tweets

Meanwhile, a judge in New York City issued a ruling last year that could have huge implications for anything you store online in the cloud. The case involved one of the protesters arrested at an Occupy Wall Street demonstration. When the New York district attorney subpoenaed all the tweets he had written over 3 1/2 months, the protester and his lawyer tried to block it. But the judge said they couldn't, because even though the protester wrote those tweets, he "has no proprietary interests" in them — in other words, he didn't own the tweets; Twitter Inc. did.

"And that is really a crucial, crucial issue in this age of cloud computing," says Martin Stolar, the protester's criminal defense and civil liberties lawyer.

"Because people now use the cloud to store all kinds of private, personal information — where they travel, where they go, where they go to church, whom they consult with their doctor, what their medical conditions are, what personal private conversations they've had. If they are stored in the cloud, then the person who stored them in the cloud loses the right to object when the government seeks them."

Incidentally, if you think your tweets or other digital messages are really gone when you click "delete," think again. Twitter and other digital companies keep them in computer archives for months or years.

The New York ruling represents just one judge's decision, and Stolar is appealing it. But there's a battle over these issues across the country. For instance, some courts have ruled that police can get emails and cellphone logs with just a subpoena, while other courts have said that law enforcement needs probable cause of a crime and a search warrant. Stolar says if the ruling on the Twitter case stands, it could make it even easier for the government to get a detailed portrait of your personal life — with just a subpoena.

Research for this story by NPR's Emma Anderson

Copyright 2013 NPR. To see more, visit http://www.npr.org/.

Transcript

AUDIE CORNISH, HOST:

It's ALL THINGS CONSIDERED from NPR News. I'm Audie Cornish.

MELISSA BLOCK, HOST:

And I'm Melissa Block.

All this week, we're exploring the intimate details we reveal to the digital world, often without even knowing it. When we browse the Internet, text our friends or buy a prescription at the pharmacy, we're creating a digital portrait of ourselves. The question is, who can see it?

As NPR's Daniel Zwerdling reports, laws in the Digital Age has made it easier for a lot of people to access your private information, including local police and private attorneys.

(SOUNDBITE OF A MOVIE, "THE BOURNE IDENTITY")

UNIDENTIFIED MAN #1: All right, go. Keep going.

DANIEL ZWERDLING, BYLINE: Writers have fantasized for years what it would be like if the government could monitor everything we do.

(SOUNDBITE OF A MOVIE, "THE BOURNE IDENTITY")

UNIDENTIFIED MAN #1: Come on, folks. We caught a break here. Let's go. OK, I'm up. We're getting grids...

ZWERDLING: Did you see "The Bourne Identity?" It came out more than 10 years ago. In this scene, young government agents are glued to monitors in a crowded room. They're tracking almost everywhere Jason Bourne goes.

(SOUNDBITE OF A MOVIE, "THE BOURNE IDENTITY")

UNIDENTIFIED MAN #1: Airlines, trains, hotels...

UNIDENTIFIED MAN #2: Just get the address and streets.

UNIDENTIFIED MAN #3: Got him in sight.

UNIDENTIFIED MAN #2: Here we go.

UNIDENTIFIED MAN #3: I got it. I think I got it.

ZWERDLING: They got a photo of the woman he's with from a surveillance camera hundreds of miles away. She's just a bystander. Almost instantly, they I.D. her and pull up the digital records of her life.

(SOUNDBITE OF A MOVIE, "THE BOURNE IDENTITY")

UNIDENTIFIED MAN #2: Marie Helena Kreutz, she's 26, born outside Hanover. Her father was a welder and died in '87. She paid some electric bills in Spain in '95, had a phone in her name for three months in Belgium in '96.

UNIDENTIFIED MAN #1: I don't like her. I want to go deep. I want to know every place she's slept in the past six years.

ZWERDLING: And they can do that in Hollywood. But could government agents really sit in a room and gather that information in 60 seconds or less? I asked Kevin Bankston. He's a senior lawyer with the nonpartisan Center for Democracy and Technology. And he says the answer is no.

KEVIN BANKSTON: It's really exaggerated. Movies about surveillance have given us a pretty science-fictional view of what the government can do, where they can immediately get any record in the world or tie into any surveillance camera or, you know, surveil everything.

ZWERDLING: Still...

BANKSTON: That is the world we're moving toward.

ZWERDLING: And Bankston says one reason why is the digital revolution itself. For instance, Facebook uses software now that identifies people from photos. And he says there's another reason why the government can get digital records almost as fast as they do in the movies. The laws that regulate the government were written back in the analog age, so often the government doesn't have many legal restraints.

America's founders weren't thinking about computers when they wrote the Bill of Rights.

UNIDENTIFIED WOMAN #1: Again, (unintelligible) up on the floor. Please, do not touch the glass or...

ZWERDLING: Before the government shut down, we stopped by a top tourist spot here in Washington, D.C. We are here to talk about the Fourth Amendment. It was ratified back in 1791.

UNIDENTIFIED WOMAN #1: Thank you for visiting the National Archives and enjoy.

ZWERDLING: Maybe you visited this rotunda. The Declaration of Independence comes first. It's set in a huge marble and bronze case along the curved wall, then the Constitution, then the amendments.

Can I talk to you for a moment?

EMMA ZAI: Sure.

ZWERDLING: So, do you know what you're looking at here?

ZAI: Yeah, the Bill of Rights.

ZWERDLING: Emma Zai(ph) is 13. She's from Wisconsin. She's peering through the glass of a stained old manuscript.

Can you read any of that?

ZAI: (Reading) The right of the people to... be successful?

ZWERDLING: Boy, it's really faded. Hasn't it?

ZAI: Yeah.

ZWERDLING: Fortunately we've come prepared with a clear copy.

ZAI: (Reading) The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated.

ZWERDLING: What does that mean to you?

ZAI: Well, they're saying that if you don't want something to be searched without permission, then that will not happen.

DAVID COLE: So that's the principal constitutional protection against government spying. It always has been.

ZWERDLING: David Cole teaches constitutional law and national security at Georgetown University. He says the world of computers has weakened the Fourth Amendment.

COLE: In the modern digital age, it means very, very little.

ZWERDLING: And here's why. Let's say the police or FBI wanted to gather intimate details about your life back in the old days, meaning before computers came along. Who are you meeting? What are you reading? What are you writing in your diary? What kinds of products have you been buying? Where are you going to travel and where will you stay?

Maybe the best way to get to get that information would have been to search your home and bug it and wiretap your phone, too. And based on the Fourth Amendment, that meant the police would have had to get permission from a judge.

(SOUNDBITE OF TV SERIES, "LAW AND ORDER")

UNIDENTIFIED WOMAN #2: Hey, have you seen any judges around? It's an emergency. I need someone to sign a warrant.

ZWERDLING: A search warrant, you hear it on TV cop shows all the time. This is from "Law and Order."

(SOUNDBITE OF TV SERIES, "LAW AND ORDER")

UNIDENTIFIED WOMAN #2: You bet'cha. Judge Bradley...

ZWERDLING: To get a search warrant, the police or FBI have to convince a judge that they have probable cause that the place they're going to search or the person they're going to bug will likely to reveal evidence of a crime.

(SOUNDBITE OF TV SERIES, "LAW AND ORDER")

UNIDENTIFIED MAN #4: The information in this warrant is truthful?

UNIDENTIFIED WOMAN #2: It is.

UNIDENTIFIED MAN #4: Based on your personal knowledge, Detective.

UNIDENTIFIED WOMAN #2: It is, Your Honor.

UNIDENTIFIED MAN #4: It better be.

ZWERDLING: But since the 1960s and 1970s, the Supreme Court and other courts have issued a series of crucial rulings. They've said the government does not need a search warrant to get your personal documents if you've already shared them with somebody else. For instance, if you let your bank and credit card company know what you buy, and you let your phone company know whom you call, then you can't claim that information is private. It's kind of like the lesson you learned when you were 12 - if you don't want everyone else to read your diary, then don't show it to anybody.

Then on top of those court decisions, the digital revolution came along. And, as David Cole says, many of the most intimate details of your life that you used to protect at home morphed into digital documents. And they're on someone else's computers.

COLE: When I send an email, I've shared it with the Internet provider. When I search the Web, I've shared it with the Web company. When I walk around with my cellphone, I'm sharing with the cellphone company my whereabouts.

ZWERDLING: The books you buy and read online, the programs you watch.

COLE: All of that information has lost its constitutional protection, and the government can get it without having to make any showing that you're engaged in illegal activity or suspicious activity.

ZWERDLING: So, police often don't need to show probable cause of a crime when they want to find out details about your life that they used to find in your home. Instead, they can get your private files from corporations that store them on their computers. And instead of a search warrant, the police might just need a subpoena.

BANKSTON: Subpoenas are trivially easy to issue.

ZWERDLING: That's Kevin Bankston again, from the Center for Democracy and Technology. You don't need a judge to issue a subpoena. Prosecutors can sign them. Authorized employees at federal and state agencies can issue them. And you don't need evidence that there's likely a crime. You just need to be able to show that the records you want are relevant to an investigation.

BANKSTON: Relevant, a very low standard. That person simply needs to believe that the information being sought is relevant.

ZWERDLING: Some business executives say they're stunned how easy it can be for their government to give them subpoenas. For instance, agents of the Drug Enforcement Administration wondered if some people around Fairbanks, Alaska were making or growing drugs in their homes. So what did they do? The DEA subpoenaed their digital power records from the Golden Valley Electric Company. Drug dealers sometimes use more power than normal and the DEA was hoping to catch them.

But the power company tried to block the subpoena in court.

CORY BORGESON: We think at Golden Valley that what we sell to our members, and that's electric kilowatt hours, is really private.

ZWERDLING: Cory Borgeson is the company's president. He says your computerized power records can reveal all kinds of information that has nothing to do with a crime, such as: how many people live in your house, what times are they awake or asleep, do you run a business that might be perfectly legal but neighbors might complain if they find out?

He says if the government wants your power records, they should have to show probable cause of a crime and get a search warrant.

BORGESON: Some people might think that, well, it's not terribly sexy that we know how many kilowatt hours you use in a day or a month or a year. But it's kind of like looking at you through an open window and seeing what you do in your home.

ZWERDLING: Borgeson and the company lost their case. They had to turn over the records. Meanwhile, a judge in New York City ruled last year that the government can get your tweets - even after they've been deleted - with a subpoena.

Martin Stolar, wait a minute. So when we think our tweets have been deleted...

MARTIN STOLAR: They are still in storage on Twitter's archive.

ZWERDLING: Martin Stolar is a civil liberties and criminal defense lawyer. He's representing one of the protesters who was arrested at an Occupy Wall Street demonstration. The New York district attorney had subpoenaed all the tweets the protester had written over three and a half months. Stolar and the protester tried to block it. But the judge said they couldn't. And listen to the reason why. The judge said that even though you write your tweets, even though they express what you're thinking, you don't own them - Twitter does.

STOLAR: And that is really a crucial, crucial issue in this age of cloud computing. The judge has made a very clear distinction that stuff that you would usually store in your desk drawer, which you now store in the cloud, that no longer is protected from an unreasonable search and seizure.

ZWERDLING: Because it's not your home. It's Twitter's home.

STOLAR: It's Twitter's home.

ZWERDLING: This is just one judge's opinion. Stolar's appealing. There's a battle over these issues across the country. For instance, some courts have ruled that police can get emails and cellphone logs with just a subpoena. Other courts have said, no, law enforcement needs probable cause of a crime and a search warrant. Stolar says if the ruling on the Twitter case stands, it could make it even easier for the government to get your personal files with just a subpoena.

STOLAR: Because people now use the cloud to store all sorts of private, personal information - where they travel, where they go, where they go to church, who they consult with their doctor, what their medical conditions are, what personal private conversations they've had. If they are stored in the cloud, then the person who stores them in the cloud loses the right to object when the government seeks them.

ZWERDLING: Over the past few months, the country has been hearing one revelation after another about the super-secret NSA, the National Security Agency. They've been monitoring Americans' emails and phone calls, the Internet. And we've been exploring this week how local police and other officials could get them, too.

But you know who else could get access to your digital life? Just ask Lee Rosen. He's a divorce lawyer in Raleigh, North Carolina.

LEE ROSEN: Every week, we're asking for bank records, credit card records, medical records, utility company records.

ZWERDLING: North Carolina and a lot of states consider private attorneys to be officers of the court, so Rosen and his staff can issue subpoenas on their own, as long as they're related to a case. He says they serve at least a dozen subpoenas every week. It's become one of the best ways to dig up evidence against people like cheating spouses.

ROSEN: We may be serving it to request text messages. We used to have to rely on private investigators and now, everything we need is more or less on the other side of the keyboard.

ZWERDLING: Tomorrow, Rosen and President Nixon's White House lawyer explain why they think everybody has something to hide. Daniel Zwerdling, NPR News.

BLOCK: Our story was co-reported by G.W. Schulz of the Center For Investigative Reporting and researched by Emma Anderson. You can read more about privacy and the digital world at our website, NPR.org. Transcript provided by NPR, Copyright NPR.