This article originally appeared in the Libertas Institute
Recent revelations that have landed Ring—a residential, visual doorbell service—in hot water reveal the need for legislative and cultural change to protect individual privacy rights.
Following receipt of a letter from Massachusetts Senator Ed Markey, the company, a subsidiary of Amazon, admitted to providing customer data to law enforcement without express permission or court order. This has given privacy-conscious people cause for concern because it means user information was provided to police without alerting customers impacted by the release.
However, convenience, not privacy, is likely at the top of customers’ minds when they initially transact with companies like Ring. Although the public is largely unaware, Ring has made its relationship with law enforcement no secret.
Ring publicizes three instances in which it provides information to law enforcement: (1) user consent, (2) compliance with a valid court order, and (3) cases of emergency involving imminent danger of death or serious physical injury that prevents the procurement of a court order.
Of course, the average person is unlikely to read Ring’s privacy page and is likely unaware that the “imminent danger” the company refers to is a legal term of art with a specific meaning to those who interface with the legal system.
The mismatch between customer expectations and reality comes from the practical fact that people often fail to completely contemplate the risks of their actions until after crucial decisions have already been made. This is an understandable, but unfortunate, reality.
Although Ring’s relationship with law enforcement may be too close for comfort to some, the company’s transparency is arguably not legally required. This is because longstanding legal doctrines allow law enforcement to sidestep Fourth Amendment protections.
To understand how Fourth Amendment jurisprudence has changed over time, it is necessary to know about the “third-party doctrine,” a judicial creation born in the 1970s that determined individuals have no “expectation of privacy” in information released to a third party. Prior to the establishment of this doctrine, the court ruled the Fourth Amendment was inapplicable unless a person’s “reasonable expectation of privacy” had been violated.
Under this judicial framework, once information is transferred from a consumer to a company, the consumer loses any expectation of privacy, making collaborative relationships between companies and law enforcement easy and friction-free.
Functionally, this means the original Fourth Amendment no longer applies in many social settings and business transactions. The court essentially added to the text of the Fourth Amendment, gutting it of its broad protective power. Rather than protecting the “right of the people to be secure…against unreasonable searches and seizures,” the court now protects the “right of the people to be secure….against searches and seizures deemed to be unreasonable by public norms recognized by the courts.”
The harsh truth of the twenty-first century is that as the court has loosened Fourth Amendment protections, Americans have become more liberal with the amount of private information shared in public, or quasi-public settings.
The Supreme Court is beginning to take note of the problems posed by modern technological advances. For example, in Riley v California, the court ruled that, generally, police must obtain a warrant before searching an arrested person’s cell phone.
However, absent overruling precedential cases, the court’s ability to respond to a rapidly evolving technological landscape is limited. Instead, the remedy to problems revealed by strong relationships between private technology companies and law enforcement is legislative and cultural.
To address the current privacy problems associated with collaboration between technology companies and law enforcement agencies, legislation and cultural change are needed.
As Justice Alito opined, legislatures—not courts—are in the best position to “assess and respond” to current and anticipated advances in technology. Legislatures at the state and federal level should pass laws that codify warrant requirements to put an end to the troubling trend of collaborative relationships between technology companies and government agents.
Additionally, individuals must become more conscious of the value of their privacy. Willingly contracting with companies that have a tight, publicly disclosed relationship with law enforcement signals to companies that consumers are not deterred by the relationship.
This can be changed through consumer education and empowerment. Many consumers would change their relationship with technology companies if they were aware of the risks before working with specific companies. This change in behavior would impact the marketplace. If individuals refuse to work with companies that fail to value their privacy interests, other corporate entities will take notice and alter their policies to appeal to these consumers.
The road to reversing the cultural and legal tide to value privacy rights will be hard, and long. But complacency will only guarantee a bleak future.