The Terms and Conditions of Perceived Privacy in the United States
By RAMSEY BADEN | August 17, 2017
“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.”
This is the Fourth Amendment of the United States Constitution.
Since the dawn of our nation, Americans have placed privacy on a pedestal. Blood has been shed in the name of it; the Revolutionary War came about partially in response to alleged invasions of privacy. The authors of the Constitution crafted a set of guidelines as a testament to this value, believing that it would stand the test of time as a shield of the people.
It has failed. More accurately, it was never destined to succeed. The Constitution’s creators had no way of knowing that Americans would find themselves trapped in an arena where institutions rip their privacy to pieces. Their Constitution has since been replaced by a new treaty, one that has dramatically altered the future of privacy and, ultimately, liberty in the United States.
This treaty usually begins and ends with a simple statement, “I have read and agree to the Terms and Conditions.”
Unfortunately, this is as far as most people bother to read. End User License Agreements (EULAs) have grown exponentially in lockstep with the rise of software, but few Americans are actually reading the fine print. In 2010, a study published in the University of Chicago Law Journal revealed that just one in a thousand users (0.11%) click links to terms of service, and just 0.07% read terms of service when a checkbox for agreement is offered. This study was conducted seven years ago; it is likely that the numbers have continued to dwindle. According to another study by the Skandia firm in Britain, “nearly six in 10 (58%) adults said they would rather read an instruction manual or their utility or credit card bill than go through online terms, and more than one in 10 (12%) would rather read the phone book.”
This appears to be part of the treaty’s design. Carnegie Mellon researchers found that if the average American citizen tried to read all their terms of service, it would take them 76 work days to finish. If the nation tried to do it, it would take on an opportunity cost of about $781 billion. According to a Fairer Finance survey, the terms and conditions of some companies run over 30,000 words long. In comparison, the original Constitution is 4,543 words long (7,591 with all subsequent amendments). This raises the question of whether companies are deceiving consumers by making their terms of service, which are legally binding, unnecessarily lengthy and effectively incoherent. This confusion allows companies to use vague terms that allow them to legally collect information about their patrons in bulk, which they could then use for targeted advertising, college rejection, job prevention, or even medical treatment refusal.
The debate about privacy has sparked many conflicts between the government and its constituency. Following the September 11th terrorist attacks, the PATRIOT Act was voted into law with overwhelming bipartisan support. In effect, it allows the government to conduct surveillance “without tipping off terrorists.” Theoretically, this would give the government the necessary tools to prevent terrorist attacks all together. Yet, as our technologies develop at an exponential rate, the limits of the Patriot Act become less clear regarding citizens’ privacy and what can and cannot be done in the name of counter-terrorism.
The internet is one such technology. In the past two decades, it has connected billions of people around the globe. Because of its significant reach, the internet has some of the biggest implications for modern privacy, with web encryption and security entering the spotlight accordingly.
A chief example is Apple’s skirmish with the FBI over iPhone encryption. In 2015, the FBI ordered Apple to create a “back door” so that it could access data on the locked phone of one of the terrorists in the 2015 San Bernardino shootings. The FBI was suspicious that a third person could have been involved in the attack and wanted to use the phone’s data to determine if this was true. It justified its request with the “All Writs Act,” a 227-year-old law signed by George Washington that essentially “gives federal judges the power to issue orders to compel people to do things within the limits of the law.” Apple refused the FBI’s court order, protesting that this kind of back door was unethical and would endanger its customers. Apple and several other tech companies are afraid of a future in which the government, or sophisticated hackers, can access personal information whenever they deem it necessary. In the end, the FBI dropped its case after it utilized a third-party firm named Cellebrite to access the phone, circumventing Apple in the process. (Ironically, Cellebrite was hacked in January 2017, less than a year after the case was dropped.) The San Bernardino case raised more questions than it answered.
Other companies have also struggled with encryption in court. Some, like Microsoft, have seen moderate success – on July 14, 2016, the U.S. Court of Appeals for the Second Circuit ruled that data stored on Microsoft’s servers in Ireland could not be retrieved by the U.S. without Ireland’s approval. However, recent cases have hardly resulted in a consensus. Google was forced to turn over emails stored overseas to the FBI after a decision made by a U.S. Magistrate Judge in Philadelphia. In a February murder investigation in Arkansas, Amazon initially refused to hand over data recorded by a suspect’s Echo device, but later relented when the suspect permitted it.
Companies like these receive thousands of requests for information from U.S. law enforcement annually. Google alone receives more than 25,000 requests per year. Law enforcement authorities and the tech companies that hold our information have struck a delicate balance, but only time will tell whether the scales will tip either way.
However, something far more important than the rights of Microsoft, Google, Apple, or the FBI has been left out of these debates – the voice of the consumer. As companies and governments brandish their weapons in court, the consumer is chained to a spectator’s seat and must watch as others fight over one’s “private” information.
Privacy is little more than an American dream. Today, the unfettered rise of technology in our society has made it effectively impossible to stay off the grid, and we cannot control the spread of information about us. Regardless of whether they have been taken or given away, the consumer’s rights to privacy have been left in the hands of larger-than-life firms. As our society becomes increasingly technological, the Fourth Amendment is cast under an ever-growing shadow.
Do Americans want privacy, or security? It is unclear whether we can have either.