Tuesday, September 04, 2012

Service agreements could be structured as to offer "4th Amendment protection"

Hanni Fakhoury has an important piece on the Electronic Frontier Foundation website, “Service agreements can kill privacy, but can they create it, too?”, link here

There seems to have developed a doctrine among circuit courts that individuals, by storing personal information (or implied personal information in the form of postings) with a service provider surrenders the Fourth Amendment protection that the government needs a warrant to look at electronic evidence in criminal investigations. 

However, the article says, the Ninth Circuit has left open the idea that service providers can write their agreements with customers in such a way that customers can have a reasonable expectation that searches will be challenged with demands for search warrants. 

There was a recent case in California where the U.S. sought energy consumption records from a small utility cooperative called Golden Valley, in order to try to determine if it was likely that a particular rancher was growing marijuana plants on his property. It was trying to use the “third party back door” to get out of a direct need for a search warrant.  In a complicated ruling, the Ninth Circuit left open the idea that a utility or service provider (which may in the future may become one service in the “smart grid” world of Thomas Friedman and others) could structure a service agreement as to challenge government attempts to gather the material without search warrant.

We’ve seen signs of this already, with Twitter going to bat for users to resist subpoenas (July 5) of “Occupy” protest communications.

In the COPA trial a few years ago, there was controversy over subpoenaing Google for search engine search results.  

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