Upgrade our right to privacy
The Fourth Amendment guarantees the “right of the people to be secure in their persons, houses, papers, and effects.” It protects against “unreasonable” intrusions into our private lives. Or at least the authors of the Bill of Rights thought it would. But they could not envision the digital world, where the average person amasses hundreds of “papers and effects” every day and stores them not in a chest by the bed but in phones, computers, and the cloud (which is to say, computers owned by other people).
At the peak of the Trump administration’s cruel family-separation policy, the US government targeted undocumented communities by purchasing cellphone location data from telecom companies. Why bother getting a warrant when you can just buy the information you’re looking for? Today’s “papers and effects” include not just correspondence like emails and texts but troves of deeply intimate data ranging from credit card transactions to health information to eye movements and expressions of emotion. The data we generate just going about our daily lives paints a detailed picture of who we are: our interests, our relationships, our beliefs, our fears and vulnerabilities.
Biometric surveillance technologies like facial recognition — which has been used to pick people out of the crowd at protests and to crawl through driver’s license and mug-shot databases — render the Fourth Amendment practically obsolete. The ability to build detailed profiles of people’s intimate lives by using software to analyze haystacks of “public” data, such as footage collected from security cameras or photos posted to social media, threatens to make the concept of human privacy extinct.
Over the last decade we’ve learned that it’s not just governments that can abuse data in ways that interfere with individuals’ life, liberty, and pursuit of happiness. Big Tech giants like Facebook and Amazon have built their kingdoms on a foundation of surveillance, harvesting our data and using it to manipulate us, with disastrous consequences.
Realizing that rules and norms are lagging far behind technology, policy makers around the world have begun passing new laws. Many of these frameworks, such as Europe’s General Data Protection Regulation, are based on the concept of requiring institutions to obtain “consent” before collecting and using people’s data. But these efforts are insufficient, because they fail to contend with the enormous imbalance of power between individuals and institutions. It is impossible to meaningfully consent to the pervasive surveillance that modern technology enables.
With policies that govern technology, the devil is always in such details. If we could update the Bill of Rights to truly enshrine the right to privacy, to ensure that humans can actually be secure in our “papers and effects,” we should include a broad prohibition on abusive uses of data that people cannot meaningfully consent to. Mass surveillance, whether conducted by the National Security Agency or Instagram, is not “reasonable,” by any definition of the word. A version 2.0 of the Fourth Amendment should ensure that people enjoy the same freedoms in the digital world as they do in the physical world — and prevent institutions from using data in ways that deprive people of their basic human rights.
Evan Greer is director of Fight for the Future, a digital rights advocacy group.