Data Privacy Day Brighter to Advocates Because of Appeals Court Victories
STANFORD, Calif. -- Civil libertarians go into Data Privacy Day, Friday, cheered by a string of recent victories in intermediate federal appeals courts concerning electronic communications, said two prominent legal activists. Last month, a “really important” ruling by the 6th U.S. Circuit Court of Appeals in Cincinnati recognized for the first time a reasonable expectation of privacy in stored e-mail, said Professor Susan Freiwald of the University of San Francisco’s law school.
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Weeks earlier, the 3rd Circuit in Philadelphia had distinguished location records stored by a cellphone provider from bank records and phone numbers, whose possession by third parties undercuts any privacy questions, said Kevin Bankston, an Electronic Frontier Foundation lawyer. And that decision came on the heels of a ruling by the District of Columbia Circuit that government GPS tracking through a device on a car deserves more legal scrutiny than shadowing someone in person, he said late Monday at Stanford Law School.
None of the privacy victories is complete, the lawyers acknowledged. The individuals challenging the government haven’t won all the cases, the rulings don’t apply outside the circuits, and the government can seek review, they said.
The December ruling in U.S. v. Warshak rejected the government’s argument that the defendant -- the founder of a maker of a “male enhancement” product -- had no reasonable expectation of privacy, triggering Fourth Amendment protection and warrant requirements, in e-mails stored by a provider whose terms of service allowed it access to the messages. The government lost “in part because of the invasiveness of this surveillance,” Bankston said.
But the ruling left open how far the protection goes -- how much provider access would eliminate privacy expectations, Bankston said. Requests for review by the full 6th Circuit are due at month’s end, he said, and he expects both sides to seek it. Meanwhile, the decision applies in “only one circuit,” and the government won’t abide by it elsewhere, Bankston said. The ruling does raise a question of whether an employer’s notices that workers have no expectation of privacy in communications on company facilities allow the government access without a warrant, the lawyers said.
The 3rd Circuit had remanded, in an In re Application case, to a magistrate judge whether a subscriber had a reasonable expectation of privacy in location data stored by a cellular carrier, Freiwald said. Many judges had approved ex parte applications for this kind of information before the magistrate, in Pittsburgh, said no, according to Freiwald. Privacy advocates have a division of labor, she said: Some are arguing that the magistrate should require the government to get a warrant for the information while others are attacking the constitutionality of the federal Stored Communications Act.
In the GPS tracking case, the appeals court rejected a request for review of a panel’s ruling by all the judges, and the question now is whether the government will ask the Supreme Court to overturn it, Bankston said.