The fact that, in the digital age, Americans’ personal data is often held by third parties should not be taken to mean that they have no right to keep it private from the government, the top attorney for the 16 U.S. spy agencies told an audience of Washington, D.C., lawyers Tuesday.
“I think we should stop viewing this analysis of privacy interest as an on-off switch” to decide whether or not the Fourth Amendment applies, said Robert Litt, general counsel for Director of National Intelligence James Clapper, referring to the so-called “third-party doctrine.”
Taken on its face, the doctrine holds, as Litt explained, “if you give a document to a third party, you lost your expectation of privacy with the document whether it is a laundry ticket or a confession of mortal sin.”
Instead, he said, it is important to distinguish between the different types of disclosure to third parties: Metadata is different from content; and something posted on Facebook ought to be viewed very differently from a phone’s address book backed up in the cloud.
Privacy analysis should be “more of a rheostat to identify the degree of protection that would ensure the collection and use of that data is reasonable,” Litt said.
“Ask yourself, what is the actual harm for constitutional purposes?” he said. “The criticism of the bulk metadata program invariably focuses on what the government could do with bulk metadata, not what it did do.”
Litt told his audience at a luncheon event of the American Bar Association’s Standing Committee on Law and National Security that he was speaking in a personal capacity. But his remarks are notable nonetheless, coming as Congress weighs an update to the Electronic Communications Privacy Act, which governs the access federal law enforcement and other officials have to email and other digital communications.
ECPA and the third party doctrine have been rendered obsolescent by advances in digital technology, many observers believe.
“To badly mangle Karl Marx, a specter is haunting Fourth Amendment law — the specter is technological change,” Litt said, opening his speech.
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