Legal right to privacy must be updated as technology advances

With the growing technological advancements, pervasiveness of social media, and digitalization of society, the legal right to privacy requires updating. The critical question everybody should be asking is how are my privacy rights as a citizen being protected within the changing society? Given the recent decisions of the U.S. Supreme Court, California Supreme Court, and California Legislature, the trend towards privacy rights is an expansion in favor of private citizens.

On June 22, the U.S. Supreme Court decided Carpenter v. United States, 2018 DJDAR 6026, which required the court to determine whether the government's acquisition of cell-site records was considered a search under the Fourth Amendment. In 2011, the FBI and local police were investigating a string of armed robberies in the Detroit area. To place the suspects at the scene of the crimes, law enforcement collected more than 120 days of cellphone location data. Law enforcement obtained a broad court order under the Stored Communications Act rather than securing a warrant. The act authorizes the release of records when there are facts showing reasonable grounds to believe the records are relevant. The 6th U.S. Circuit Court of Appeals upheld the warrantless search, however the Supreme Court overturned this decision, holding that law enforcement generally need to obtain a warrant supported by probable cause before they can access cellphone location data. The court reasoned that there was a reasonable expectation of privacy in this data, although held by a third party, because these cell-site records document the phone user's physical movements. The court decided that the third-party exception did not apply because cellphones are an integral part of modern society, and the records are taken without any affirmative action by the user. The court did make it clear that case-specific exceptions will still apply, such as exigent circumstances.

A month earlier on May 29, the Supreme Court, in Collins v. Virginia, 2018 DJDAR 4931, decided whether the automobile exception permitted a warrantless entry of the curtilage of a home to search a vehicle therein. During the investigation of a traffic incident involving an orange and black motorcycle, an officer learned that the motorcycle was likely stolen and in the possession a man named Ryan Collins. The officer discovered photographs of the motorcycle on Collins' Facebook page, and proceeded to Collins' residence to verify. Without obtaining a warrant, the officer walked up to the top of the driveway, and removed a tarp revealing the black and orange motorcycle and obtained the license plate and VIN numbers. After confirming the motorcycle was in fact the stolen, the officer took photographs, replaced the tarp, and then waited for Collins to get home. Upon his arrival, the officer arrested Collins for possession of stolen property. The Virginia Supreme Court held the search was justified under the Fourth Amendment's automobile exception. The U.S. Supreme Court, however, reversed, holding the automobile exception does not permit a warrantless entry of a home or its curtilage to search a vehicle therein. The court reasoned that because curtilage is considered part of the home for Fourth Amendment purposes a warrant is required in order to obtain evidence from property located within the home's curtilage.

The California Supreme Court has also recently echoed the U.S. Supreme Court's trend in rulings. On May 24, in Facebook Inc. v. Superior Court, 2018 DJDAR 4883, the court decided the issue of whether social media web sites are required to comply with a subpoena for records from criminal defendants. The defendants were charged with murder and other gang-related offenses arising out of a drive-by shooting in San Francisco. Each defendant served a subpoena to social media providers, broadly seeking public and private communications from the homicide victim and a prosecution witness. The social media providers moved to quash the subpoena asserting that the Federal Stored Communications Act bars the defendant's request. The providers argued that the FSA prohibits them from disclosing or divulging any communications by users which the provider store, whether it is configured to be public, private, or restricted. Defendants implicitly accepted this reading of the act arguing, however, that it was a violation of their Fifth and Sixth Amendment rights to the extent it precludes compliance with pretrial subpoenas. The trial court agreed with defendants' arguments and subsequently denied the provider's motion to quash and ordered production of the requested communications. The Court of Appeal disagreed, and the California Supreme Court granted review. The court ultimately held the subpoenas requiring disclosure of restricted information was unenforceable but those that required disclosure of public information were enforceable.

In keeping with this current trend, the California Legislature passed The California Privacy Act of 2018 on June 28. Beginning Jan. 1, 2020, the act creates a right for consumers to: request a business to disclose the categories and specific pieces of personal information that is collected about the consumer; request the business disclose the purposes for collecting or selling personal information; request information about the categories of third parties with which the information is shared; request deletion of personal information; and opt out of the sale of personal information by a business. The act also requires a business to: make disclosures about the information and the purpose for which it is used; delete a consumer's information upon receipt of a verified request; not discriminate against a consumer that does not allow their information to be sold to a third party; and acquire affirmative authorization before selling the personal information of a consumer under the age of 16. The act also gives the attorney general enforcement power by initiating a private right of action in connection with certain unauthorized access, theft, or disclosure of a consumer's nonencrypted or nonredacted personal information.

Social media has allowed us to be more connected, and thankfully the courts and legislature are limiting businesses and the government's ability to exploit this aspect of the digital world. The continued preservation of the digital walls around our data ensures our rights are not infringed in the digital age.

A special thanks to Sydney I. Baines and John Horstmann, who are law clerks at Kaplan Marino, for their invaluable contributions.