Fixing the Fourth Amendment: Software, Surveillance, and Satire
- January 27th, 2020
- in Capstone Commentary
by Samuel Blackington
If the old adage that “knowledge is power” is true, then one’s personal information is a priceless commodity in the highly-digital age we currently live in. To clarify what I mean by personal information, this includes data such as an individual’s fingerprint and even a person’s own face that can all be collected through smart devices that utilize either fingerprint or facial recognition software. Although it is an issue that seems shallow at face value, it encompasses a broader discussion over the surveillance of a person’s devices or even the collection of private data which is contained online.
One can access a cell phone simply by placing their fingerprint on a scanner or by presenting their face to a camera. What is preventing law enforcement from pressuring or even forcing an individual to open up their phone, to be used as evidence? If we follow this logic in examining similar hypothetical situations, the question becomes whether or not one’s fingerprint or face should be granted the same protections guaranteed by the 4th Amendment. Even if one’s face or their fingerprint is constantly in public view, should it still be considered a personal ‘effect’ as it is uniquely theirs? If law enforcement are mandated to obtain warrants in order to access cell phone information such as a device’s location (As determined by the Supreme Court in the case of Carpenter v. United States by 5-4), what are the rights which should be guaranteed regarding other information on these devices? At which point do we effectively draw the line between a faithful execution of the law and overreach which can jeopardize an innocent person’s personal and private life?
As it currently stands, the privacy laws regarding issues such as these are far too outdated or inadequate to properly answer and address these concerns. There are undoubtedly reasons which can justify unwarranted surveillance, especially with the War on Terror still ongoing to this day. For example, by utilizing surveillance techniques currently employed, law enforcement can work far more efficiently and effectively in solving crime or even proactively preventing it. In a time where technology has coincided with the ongoing War on Terror, it comes as no surprise that counter-terrorism agencies look to extensively utilize new technologies such as facial recognition in order to more effectively combat terrorism (Washington Post).
It is because of this that lawmakers have passed legislation such as the controversial PATRIOT Act. Furthermore, one of the most persuasive points in favor of surveillance is the notion that if you have nothing to hide, there is nothing to fear. This in itself is generally hard to rebuke. However, upon further examination, the argument is predicated on a major logical fallacy that implies that all secrets are nefarious. In a more basic and personal level outside the realm of law, if an individual asks to view their personal belongings such as a smartphone, they already hold an inherent bias and are searching for information that justifies their suspicion. This search for confirmation, regardless of an objective truth, exemplifies the fallible nature of people Jean-Paul Sartre deemed “bad faith.”(2) Even if personal information like this can be utilized to potentially prevent and solve crimes or even save lives, it might not be the sacrifice we should be willing to make in the name of justice. So how important is your sense of security when your personal data and even the very physical features that define you are at the mercy of the law?
The American justice system as a whole places an emphasis in the preservation of habeas corpus. Throughout the history of the American judiciary, courts have made many judicial decisions that sacrifices justice for upholding due process. A large aspect of following due process lies in law enforcement’s propensity to abide to the 4th Amendment, which dictates that “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.”(1) Through the past couple centuries, the American judiciary has broadened and extended the meaning of “persons, houses, papers, and effects” with heavy emphasis placed on “effects” in order to determine cases at the level of the Supreme Court. However, with the recent advent of new technologies such as fingerprint sensors and facial recognition software in devices such as smartphones, there now exists a gray area in the law where law enforcement can perform open and extensive surveillance without the need for a warrant. The United States as a whole already contains some of the weakest privacy laws in the contemporary age(3), but issues such as these only serves to further exemplify how painfully inadequate laws are as well as how terribly slow legislators are in addressing it. Yet time goes on and technology advances further, and there still remains a huge gray area in the law regarding this issue. As such, it will only inevitably become a larger issue as the law continues to stagnate. By failing to address the issue at the legislative level, lawmakers are essentially intensifying an issue which will inevitably need to be addressed. Regardless of how one stands on the issue of surveillance, they must agree that if left unaddressed, the issue will only intensify due to the extremely weak nature of American privacy law.