Kozinski: When consumers trade privacy for services, it's difficult to prevent the gov't from accessing that same info
The third party doctrine and the public's willingness to trade privacy for services that carry no charge pose a significant hurdle to attempts to stymie government use of data brokers, said Alex Kozinski, chief judge of the Ninth Circuit federal court of appeals.
"We've gotten used to getting this stuff on the cheap by selling our privacy," Kozinski said while speaking March 3 at a privacy conference held by Yale Law School--naming as examples services offered by Google and credit cards with no consumer fee.
"It's a bargain we didn't start out making--it was made for us. But we've gotten comfortable with it," he added.
The third party doctrine holds that information disclosed to a third party loses Fourth Amendment protection, even if it was divulged with an expectation of confidence. (It helped convict Teamsters President Jimmy Hoffa, Kozinski noted.)
Because Americans are willing to disclose information to third parties in exchange for services with no monetary charge, "it's going to be very hard to complain that the government gets the same stuff that we are willing to sell so cheaply," Kozinski said.
David Gray, a University of Maryland associate professor of law, said a way to limit government use of data broker information would be to designate any company that uses technology "that if it were directly used by the government, would raise Fourth Amendment concerns" as a de facto state agent. That would permit Fourth Amendment protections such as a warrant or an enhanced subpoena to be necessary before the government uses the data broker information, Gray said.
It's possible that private sector data gathering on individuals already could be limited by the Fourth Amendment, said Susan Freiwald, a University of San Francisco professor of law. "Case law establishes that when someone, whether it's the government or private entities, engage in electronic surveillance...then that should be subject to the protections of the Fourth Amendment," she asserted.