This blog writes about control systems, sensors, and the internet of things (IoT). Long-time readers know that I am concerned about privacy, and how the techniques of big data can erode privacy through accumulation of the most insignificant facts. Occasionally, I even slide over into my perception that the Supreme Court Justices all too frequently err because they do not understand technology, and how easy it is to erode the protections our Constitution grants us.
In pre-revolutionary times, officers of the crown used writs of assistance to justify widespread searches of people and their possessions. The business documents and correspondence would frequently be confiscated and or destroyed. This violated the rights of Englishmen, long established, to be secure in their homes from even the King’s men, unless there was a warrant served, based upon testimony made under oath. This violation of long-standing law was a significant factor in convincing many that a break with England was necessary.
In the 18th century, people kept their most significant documents in their desk at home. If they wanted to transport their papers or to conduct business, they would bring their papers, often in a locked box. There was no easy way to make copies of these documents; if they were lost they were irreplaceable. There was no general right recognized which permitted government agents to check the contents of these papers. In the Declaration of Independence, the then colonists chastised their government for “for abolishing the free System of English Laws in a neighbouring Province, establishing therein an Arbitrary government, and enlarging its Boundaries so as to render it at once an example and fit instrument for introducing the same absolute rule into these Colonies”
The Bill of Rights codifies things that governments must not do to its citizens, no matter their motive. The 4th amendment codifies the handling of personal and business documents.
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
Even mail, sorted, handled, and delivered by a government agency, the post office, could not be searched while in transit without specific warrant.
Today, we store our documents in the cloud. If we don’t store them there, we back them up to the cloud. Our correspondence goes through Gmail. We share documents with partners using DropBox. Every persona and professional document we have is stored on a computer somewhere, and usually off-site.
Because the Justices have not understood technology, they have treated this information as if it were transactional documents belonging to the company that holds it. Electronic documents held in the clouds by a third party today receive almost no protection. These documents are indistinguishable from the private correspondence and papers of colonial times. They are no more novel than papers typed out with a typewriter were different from those hand-copied in prior times.
There are several proposed laws in congress that would assign to these electronic documents the same protections as are held by paper documents. In essence, these laws would declare that our electronic backups, our email, and our cloud shared storage are exactly the type of papers and effects described in the fourth amendment.
A petition as whitehouse.gov asks the executive branch to support these laws.
https://petitions.whitehouse.gov/petition/reform-ecpa-tell-government-get-warrant/nq258dxk
Please, go to whitehouse.gov and sign the petition.