Bernard Chao: How Much Privacy Should You Expect in the Digital Age?

Privacy, Searches, Seizures and the Law

The digital age is challenging the way our judicial system balances privacy against the needs of law enforcement. The Fourth Amendment of the U.S. Constitution states:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.”

Our devices, as well as cloud-based services like Dropbox, have revolutionized our concept of what information should be considered private. For example, in U.S. v. Graham, the U.S. District Court for the District of Maryland applied the so-called "third party doctrine". In that case, the court held that the Fourth Amendment does not protect historical cell site location data. Therefore, law enforcement officers do not require warrants to obtain access to that data. The court reasoned that the defendant communicated the data to a "third party", namely the cell phone provider.

These technologies also pose significant Constitutional challenges. For example, who should set the standard of what constitutes a "reasonable expectation of privacy" in the first place? Should judges or the public determine such reasonableness?

My guest today is Professor Bernard Chao --a professor at the University of Denver's Sturm College of Law, where he co-Directs the law school's Empirical Justice Program. Chao has written that, up until now, judges have had to guess about what constitutes reasonableness. Historically, judges have had to place themselves in the shoes of a hypothetical reasonable person. However, according to Chao, judges are now in a position to gather empirical data via public surveys.  This data has the potential to inform judges about what members of the public actually think constitutes reasonableness in a given context.

Further, the demographic characteristics of most judges in no way reflects the far more diverse demographics of the population as a whole. Judges are often white, male and wealthier than the average citizen. Thus, their notions of reasonableness exclude other diverse perspectives. Indeed, some of Chao's research has shown that members of certain minority groups had higher standards of privacy than did the control group.

Professor Chao is the lead author  of a forthcoming California Law Review article he is co-authoring along with Catherine Durso, Ian Farrell and Christopher Robertson entitled "Why Courts Fail to Protect Privacy: Race, Age, Bias, and Technology".

Denver Empirical Justice Institute

HUGO Consulting

Intellectual Privacy: Rethinking Civil Liberties in the Digital Age by Neil Richards

Uber, as you know, has a laundry list of controversies ... Susan Fowler a former Uber engineer, accused the company of fostering a hostile, sexual harassment  culture. Google is suing Uber for stealing trade secrets from its self-driving car unit, Waymo. Uber CEO Travis Kalanick has been caught on video berating an Uber driver.  The company has been hemorrhaging money, showing billions in losses, in quarter after quarter, despite revenue growth …

Now, Covington and Burling Partners Eric Holder-- who is former President Barack Obama’s former Attorney General-- and Tammy Albarrán are wrapping up an independent investigation they’ve been conducting on behalf of the company. It looks like Uber may be on the brink of requiring Kalanick to take at least a 3 month leave of absence. We’ll know more when Uber releases Holder’s report to employees on Tuesday. But the Board has already indicated that it would be accepting all of Holder’s recommendations. One of the recommendations is to fire Emil Michael--Kalanick’s chief deputy.  In the meantime, you can check out Ali Breland’s complete summary in the Hill.

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Tony Romm at Recode reported that current FCC General Counsel Brendan Carr and former FCC Commissioner Jessica Rosenworcel are the two front-runners President Trump is considering to fill the two remaining Commissioner slots at the FCC.

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The federal government is accusing yet another NSA contractor with leaking classified information to the public. Last week, federal agents arrested twenty-five year old Reality Leigh Winner, who had a top secret security clearance. The feds have accused Winner of sending information about Russian hacking activities to the Intercept--the online newspaper. She had served in the Air Force for 6 years prior to becoming a contractor at Pluribus International Group in Augusta, Georgia. The leaked documents revealed that Russia may have hacked a U.S. voting system manufacturer just prior to last year's presidential election. Madison Park has a full summary at CNN.com.

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Finally, Jon Brodkin reported in Ars Technica on comments made by FCC Chair Ajit Pai and Wisconsin Senator Ron Johnson on WTMJ Radio last week in which both Pai and Johnson called net neutrality a “slogan”. Johnson seemed to advocate for fast lanes (paid prioritization). But paid prioritization is a practice the Wheeler-era net neutrality rules specifically prohibits. The DC Circuit has upheld those rules, and the current FCC is now in the midst of a proceeding to overturn them. Brian Fung reports in the Washington Post that several tech companies including Etsy, Kickstarter, Mozilla, Reddit, Y Combinator, and Amazon will change their websites on July 12th to protest the FCC’s apparent plan to reverse the net neutrality rules.