How far can private companies go in obtaining data? Can the government use privately collected data against you in a criminal case? These questions are at the forefront of the law and were recently discussed by the UN High Commissioner for Human Rights in a report entitled The Right to Privacy in the Digital Age.
In this report, the UN High Commissioner for Human Rights, Navi Pillar, noted that the studies that have been conducted reveal a disturbing lack of transparency about government practices that included “de facto coercion of private sector companies to provide sweeping access to information and data relating to private individuals without the latter’s knowledge or consent.”
“This,” she said, “is severely hindering efforts to ensure accountability for any resulting human rights violations, or even to make us aware that such violations are taking place, despite a clear international legal framework laying down governments’ obligations to protect our right to privacy, and other related human rights.”
In the United States, the Constitutional protections against government surveillance do not necessarily apply to private sector surveillance. This is a dangerous problem because our forefathers saw surveillance as a significant violation of our right to privacy that had to be stopped. Unfortunately, our forefathers did not foresee the rise of private companies that would have the reach and magnitude of operations to collect every detail about our lives (including every place that we go, who we talk to, what we talk about, when we meet people, what our interests are, etc.)
As a result, Constitutional challenges to private surveillance is rather limited. For example, private companies can use means that a police officer could not to obtain information. Then, after the information is obtained, the government can access that information by merely having probable cause that the information relates to a crime. A defendant who is facing charges based on this information can only challenge the probable cause that the officer may have had to seek the information. On the other hand, if the government had attempted to collect the information on its own, the defendant would have two challenges: one that the government acted unlawfully in collecting the information, and the second that the government did not have probable cause to believe the evidence was related to the case.
So what we can see from the current law is that private actors are free to abuse our right to privacy because that right typically only relates to government interference with our right to privacy.
One possible challenge that may be coming in the future, is to challenge the legitimacy of the data collection as independent of the government. If it appears that corporations are regularly collecting data on people and regularly handing this data to the government, then there may be a strong enough link that the private company is no longer acting solely as a private company, but rather, is acting as an arm of the government. Under this argument, it may be possible to argue that the methods the companies use are a violation of our Constitutional rights and seek to have any evidence suppressed that comes from those unlawful methods.
It is clear that mass surveillance is a violation of our basic human rights, as stated by the UN High Commissioner on Human Rights. The issue is now, how can we protect our basic human right to privacy. We know that the Constitution is of limited use in this context.
This is a developing area of law that will unfold in the upcoming decades. As a criminal defense attorney in Colorado, I hope that people will push for more privacy and expect that their elected officials will push for laws that protect our privacy.
The information in this post is for informational purposes only and should not be construed as legal advice or as the creation of an attorney-client relationship. For legal advice, please contact an Attorney.