Is Big Brother Tracking You: Location Data and Fourth Amendment Privacy

Abstract:

Recent years have seen an explosion of cases challenging law enforcement agents’ ability to obtain location data without first obtaining a warrant that establishes probable cause.  This term, the Supreme Court will consider whether agents can, without a warrant, install a GPS-tracking device on a target’s car and monitor its movements for weeks.  Meanwhile, lower courts disagree over whether agents can compel, without a warrant, service providers to disclose the location data generated by their customers’ use of cell phones.

Congress is also considering several bills that would require probable cause for location tracking; but will legislators protect citizens without a constitutional mandate?  Will the Court let modern technology turn law enforcement into Big Brother — able to monitor and record every move we make outside our homes.

Professor Susan Freiwald, who has written law review articles and amicus briefs about the statutory and constitutional regulation of modern communications surveillance, will discuss these issues and argue that the Fourth Amendment, properly construed, restrains law enforcement location tracking.

Bio:

Susan Freiwald is a Professor of Law at the University of San Francisco School of Law where she teaches Cyberspace Law, Information Privacy Law, and Contracts.

Professor Freiwald received her B.A. and J.D. from Harvard.   She served as the Books and Commentaries Editor of the Harvard Law Review.   After law school, Freiwald clerked for Judge Amalya Kearse on the Second Circuit Court of Appeals.  Freiwald worked as an applications (software) developer at Oracle Corporation in Silicon Valley prior to law school.  She has written law review articles on the intersection of high technology and law, focusing primarily on online surveillance and the Fourth Amendment regulation of communications privacy.  She has also written or co-written several amicus briefs in federal district and appellate courts, including in the Warshak case and in recent cases concerning Cell Site Location Information (CSLI).  Along with EFF, she argued the CSLI case in front of a panel of the Third Circuit Court of Appeals in February of 2010.

Video Of Talk

Interesting comments and questions came up:

-What is bias? Is it psychological, or political?  Does it mean deviation- and what if the average is not what we want, or what if the average changes?

-All software programs have a bias (Mitch Kapor) vs no they don’t, they’re neutral because they’re nonpsychological

-Would using Watson to determine “ordinary meaning” just shift the question of bias to the program, rather than the judge? how would you determine “bias” in a program- it would be harder to determine.

-Really two questions: is it possible to have Watson decide things (which things?); and is it desirable?

-Reality may have a liberal bias.

-Do these questions destroy new textualism- no source can be truly unbiased?

-Would it be better to compare Watson to a dictionary, rather than a judge? Are dictionaries ever unbiased?

-Where could Watson work in other areas: consult on when it’s worth committing a crime (can you get away with it, how expensive would defense be), help fact-check in reporting…

About the Talk:
Substantial state (and private) efforts, both altruistic and power-oriented, seek to shift flows of information and systems that affect those flows in target societies, In this talk, Monroe will raise some issues and problems that have occurred during the course of his work in the last five years. These will include efforts to regulate transnational satellite signals, construct or shape media in conflict zones and competition to shape narratives of Internet regulation. One overall issue is the cumulative impact of these transnational efforts on conceptions of free expression.

About Monroe Price:
Professor Monroe E. Price is Director of the Center for Global Communication Studies at the Annenberg School for the University of Pennsylvania and director of the Squadron Program in Law, Media and Society at Cardozo School of Law. He is the author, among other publications, of “Media and Sovereignty: Global Information Revolution and its Challenge to State Power.” His most recent book is “Objects of Remembrance: A Memoir of American Opportunities and Viennese Dreams.” He is a graduate of Yale College and Yale Law School.