Your Digital Trail: Does The Fourth Amendment Protect Us? : All Tech Considered Could government agents really get access to all your private data in less than a minute? Experts say no but warn we are moving in that direction.
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Your Digital Trail: Does The Fourth Amendment Protect Us?

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Your Digital Trail: Does The Fourth Amendment Protect Us?

Your Digital Trail: Does The Fourth Amendment Protect Us?

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It's ALL THINGS CONSIDERED from NPR News. I'm Audie Cornish.


And I'm Melissa Block.

All this week, we're exploring the intimate details we reveal to the digital world, often without even knowing it. When we browse the Internet, text our friends or buy a prescription at the pharmacy, we're creating a digital portrait of ourselves. The question is, who can see it?

As NPR's Daniel Zwerdling reports, laws in the Digital Age has made it easier for a lot of people to access your private information, including local police and private attorneys.


DANIEL ZWERDLING, BYLINE: Writers have fantasized for years what it would be like if the government could monitor everything we do.


ZWERDLING: Did you see "The Bourne Identity?" It came out more than 10 years ago. In this scene, young government agents are glued to monitors in a crowded room. They're tracking almost everywhere Jason Bourne goes.


ZWERDLING: They got a photo of the woman he's with from a surveillance camera hundreds of miles away. She's just a bystander. Almost instantly, they I.D. her and pull up the digital records of her life.


ZWERDLING: And they can do that in Hollywood. But could government agents really sit in a room and gather that information in 60 seconds or less? I asked Kevin Bankston. He's a senior lawyer with the nonpartisan Center for Democracy and Technology. And he says the answer is no.

KEVIN BANKSTON: It's really exaggerated. Movies about surveillance have given us a pretty science-fictional view of what the government can do, where they can immediately get any record in the world or tie into any surveillance camera or, you know, surveil everything.


BANKSTON: That is the world we're moving toward.

ZWERDLING: And Bankston says one reason why is the digital revolution itself. For instance, Facebook uses software now that identifies people from photos. And he says there's another reason why the government can get digital records almost as fast as they do in the movies. The laws that regulate the government were written back in the analog age, so often the government doesn't have many legal restraints.

America's founders weren't thinking about computers when they wrote the Bill of Rights.

UNIDENTIFIED WOMAN #1: Again, (unintelligible) up on the floor. Please, do not touch the glass or...

ZWERDLING: Before the government shut down, we stopped by a top tourist spot here in Washington, D.C. We are here to talk about the Fourth Amendment. It was ratified back in 1791.

UNIDENTIFIED WOMAN #1: Thank you for visiting the National Archives and enjoy.

ZWERDLING: Maybe you visited this rotunda. The Declaration of Independence comes first. It's set in a huge marble and bronze case along the curved wall, then the Constitution, then the amendments.

Can I talk to you for a moment?


ZWERDLING: So, do you know what you're looking at here?

ZAI: Yeah, the Bill of Rights.

ZWERDLING: Emma Zai(ph) is 13. She's from Wisconsin. She's peering through the glass of a stained old manuscript.

Can you read any of that?

ZAI: (Reading) The right of the people to... be successful?

ZWERDLING: Boy, it's really faded. Hasn't it?

ZAI: Yeah.

ZWERDLING: Fortunately we've come prepared with a clear copy.

ZAI: (Reading) The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated.

ZWERDLING: What does that mean to you?

ZAI: Well, they're saying that if you don't want something to be searched without permission, then that will not happen.

DAVID COLE: So that's the principal constitutional protection against government spying. It always has been.

ZWERDLING: David Cole teaches constitutional law and national security at Georgetown University. He says the world of computers has weakened the Fourth Amendment.

COLE: In the modern digital age, it means very, very little.

ZWERDLING: And here's why. Let's say the police or FBI wanted to gather intimate details about your life back in the old days, meaning before computers came along. Who are you meeting? What are you reading? What are you writing in your diary? What kinds of products have you been buying? Where are you going to travel and where will you stay?

Maybe the best way to get to get that information would have been to search your home and bug it and wiretap your phone, too. And based on the Fourth Amendment, that meant the police would have had to get permission from a judge.


ZWERDLING: A search warrant, you hear it on TV cop shows all the time. This is from "Law and Order."


ZWERDLING: To get a search warrant, the police or FBI have to convince a judge that they have probable cause that the place they're going to search or the person they're going to bug will likely to reveal evidence of a crime.


ZWERDLING: But since the 1960s and 1970s, the Supreme Court and other courts have issued a series of crucial rulings. They've said the government does not need a search warrant to get your personal documents if you've already shared them with somebody else. For instance, if you let your bank and credit card company know what you buy, and you let your phone company know whom you call, then you can't claim that information is private. It's kind of like the lesson you learned when you were 12 - if you don't want everyone else to read your diary, then don't show it to anybody.

Then on top of those court decisions, the digital revolution came along. And, as David Cole says, many of the most intimate details of your life that you used to protect at home morphed into digital documents. And they're on someone else's computers.

COLE: When I send an email, I've shared it with the Internet provider. When I search the Web, I've shared it with the Web company. When I walk around with my cellphone, I'm sharing with the cellphone company my whereabouts.

ZWERDLING: The books you buy and read online, the programs you watch.

COLE: All of that information has lost its constitutional protection, and the government can get it without having to make any showing that you're engaged in illegal activity or suspicious activity.

ZWERDLING: So, police often don't need to show probable cause of a crime when they want to find out details about your life that they used to find in your home. Instead, they can get your private files from corporations that store them on their computers. And instead of a search warrant, the police might just need a subpoena.

BANKSTON: Subpoenas are trivially easy to issue.

ZWERDLING: That's Kevin Bankston again, from the Center for Democracy and Technology. You don't need a judge to issue a subpoena. Prosecutors can sign them. Authorized employees at federal and state agencies can issue them. And you don't need evidence that there's likely a crime. You just need to be able to show that the records you want are relevant to an investigation.

BANKSTON: Relevant, a very low standard. That person simply needs to believe that the information being sought is relevant.

ZWERDLING: Some business executives say they're stunned how easy it can be for their government to give them subpoenas. For instance, agents of the Drug Enforcement Administration wondered if some people around Fairbanks, Alaska were making or growing drugs in their homes. So what did they do? The DEA subpoenaed their digital power records from the Golden Valley Electric Company. Drug dealers sometimes use more power than normal and the DEA was hoping to catch them.

But the power company tried to block the subpoena in court.

CORY BORGESON: We think at Golden Valley that what we sell to our members, and that's electric kilowatt hours, is really private.

ZWERDLING: Cory Borgeson is the company's president. He says your computerized power records can reveal all kinds of information that has nothing to do with a crime, such as: how many people live in your house, what times are they awake or asleep, do you run a business that might be perfectly legal but neighbors might complain if they find out?

He says if the government wants your power records, they should have to show probable cause of a crime and get a search warrant.

BORGESON: Some people might think that, well, it's not terribly sexy that we know how many kilowatt hours you use in a day or a month or a year. But it's kind of like looking at you through an open window and seeing what you do in your home.

ZWERDLING: Borgeson and the company lost their case. They had to turn over the records. Meanwhile, a judge in New York City ruled last year that the government can get your tweets - even after they've been deleted - with a subpoena.

Martin Stolar, wait a minute. So when we think our tweets have been deleted...

MARTIN STOLAR: They are still in storage on Twitter's archive.

ZWERDLING: Martin Stolar is a civil liberties and criminal defense lawyer. He's representing one of the protesters who was arrested at an Occupy Wall Street demonstration. The New York district attorney had subpoenaed all the tweets the protester had written over three and a half months. Stolar and the protester tried to block it. But the judge said they couldn't. And listen to the reason why. The judge said that even though you write your tweets, even though they express what you're thinking, you don't own them - Twitter does.

STOLAR: And that is really a crucial, crucial issue in this age of cloud computing. The judge has made a very clear distinction that stuff that you would usually store in your desk drawer, which you now store in the cloud, that no longer is protected from an unreasonable search and seizure.

ZWERDLING: Because it's not your home. It's Twitter's home.

STOLAR: It's Twitter's home.

ZWERDLING: This is just one judge's opinion. Stolar's appealing. There's a battle over these issues across the country. For instance, some courts have ruled that police can get emails and cellphone logs with just a subpoena. Other courts have said, no, law enforcement needs probable cause of a crime and a search warrant. Stolar says if the ruling on the Twitter case stands, it could make it even easier for the government to get your personal files with just a subpoena.

STOLAR: Because people now use the cloud to store all sorts of private, personal information - where they travel, where they go, where they go to church, who they consult with their doctor, what their medical conditions are, what personal private conversations they've had. If they are stored in the cloud, then the person who stores them in the cloud loses the right to object when the government seeks them.

ZWERDLING: Over the past few months, the country has been hearing one revelation after another about the super-secret NSA, the National Security Agency. They've been monitoring Americans' emails and phone calls, the Internet. And we've been exploring this week how local police and other officials could get them, too.

But you know who else could get access to your digital life? Just ask Lee Rosen. He's a divorce lawyer in Raleigh, North Carolina.

LEE ROSEN: Every week, we're asking for bank records, credit card records, medical records, utility company records.

ZWERDLING: North Carolina and a lot of states consider private attorneys to be officers of the court, so Rosen and his staff can issue subpoenas on their own, as long as they're related to a case. He says they serve at least a dozen subpoenas every week. It's become one of the best ways to dig up evidence against people like cheating spouses.

ROSEN: We may be serving it to request text messages. We used to have to rely on private investigators and now, everything we need is more or less on the other side of the keyboard.

ZWERDLING: Tomorrow, Rosen and President Nixon's White House lawyer explain why they think everybody has something to hide. Daniel Zwerdling, NPR News.

BLOCK: Our story was co-reported by G.W. Schulz of the Center For Investigative Reporting and researched by Emma Anderson. You can read more about privacy and the digital world at our website,

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