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The Power of Consumers to Protect Their Privacy

Consumers have no control over how their private data — such as location and search history — is collected, stored, and distributed. When people lack control over when and how details of their private life become public, it is a problem for individual rights.

Numerous types of data are digitally collected, stored, and distributed. In the digital world these data points relate to individual behavior on a broad range of habits. Anything is recorded from the amount of time a user spends on a website to their search history and physical location.

The socially destabilizing effects of this reality are bad enough, but when law enforcement works closely with corporate entities to easily obtain individual digital information that would otherwise remain private, these problems become more than a social relations concern.

The use of reverse warrants — i.e., requests made by law enforcement to a technology or telecommunications company seeking caches of data relevant to a criminal investigation — is increasing. Ironically, the breadth of reverse search warrants combined with the lack of any particular suspect makes them functionally indistinguishable from the general warrants the Fourth Amendment was designed to prevent.

John Ellis, a Discovery Attorney working with the Administrative Office of the U.S. Courts, Defender Services Office, provides insight into the process law enforcement uses when working to obtain data from companies like Google. The three-step process begins with law enforcement obtaining anonymized data.

Law enforcement officers often point this out, saying they protect privacy by ensuring personal information is not initially revealed. However, under this scheme, privacy rights are illusory because the purpose of obtaining anonymized data is to eventually unmask one or more individuals. This is particularly troubling when combined with other significant facts.

First, consumers have zero control over whether companies can collect their location. The process of preventing Google from tracking location is so complicated that it baffles its own employees. Many wireless companies hold on to consumer data for months or even years.

This leads to a porous relationship between private companies and government agencies. Simply put, it is not difficult for the government to obtain location data from tech or communications companies.

The massive troves of data held by private companies is often relevant to law enforcement investigations. Because of existing legal structures, it is easy for agents to obtain a court order requiring companies to produce caches of data before a suspect is identified.

The logic of geofence warrants can be applied to other types of information. For instance, the first legal challenge to a reverse warrant seeking search engine history has been initiated. Given the amount of information available on the internet, it is not hard to envision these warrants being used to obtain data far beyond location or search history.

Solving this privacy conundrum will not be easy, but one thing is clear: the judiciary is not prepared to act swiftly in protection of privacy. Although the Supreme Court’s ruling in Carpenter v United States recognized an individual privacy interest in cell site location data, the extent to which digital information is protected remains unclear.

While court battles are fought, individual privacy protections are far from guaranteed. Generally speaking, at present, Americans simply do not know how or when data about their identity is collected, stored, or distributed.

In the digital era, individual privacy rights are teetering on the edge of extinction. To uphold the constitutional purpose of “preserv[ing] the blessings of liberty to ourselves and posterity,” there must be significant legal and cultural changes. Without these changes, the conditions that allow for individual privacy rights to exist may disappear, spelling the death of freedom as we know it.

To protect privacy, consumers must begin to ask fundamental questions before adopting new technologies. They should expect companies to be able to answer, in plain English, how they manage consumer data. Companies that rely on collecting and storing significant amounts of individual data points tied to human behavior present more future risks. People should engage with these companies with caution.

Additionally, legislative bodies should codify strong warrant requirements that undercut the porous relationship between corporations and state actors. Currently, it is far too easy for companies and law enforcement to collaborate closely, allowing government agents easy access to large consumer databases.