How do we protect consumer data from unreasonable government searches and seizures when cars and refrigerators and hospitals and financial institutions and insulin pumps and wearables are all connected to a broadband net that blankets the planet?
That is an issue the courts and big edge services providers are pondering as federal law runs up against that technological reality.
Last week, Amazon, Google, Facebook, Apple, Microsoft, Verizon and others — representing, as they pointed out, search engines, email services, social networks, smartphones, cloud storage, internet-based devices, applications and wireless networks used by billions of people — filed a friend of the court brief with the U.S. Supreme Court.
In the brief, they indicated that Fourth Amendment protections need to be updated to reflect the 21st-century realities of the Internet of Things, particularly when it comes to data being shared with third parties.
While they believe in strong digital data protection, the companies added, “rigid” rules no longer make sense and should give way to a more nuanced approach, based on such factors as the sensitivity of data and the circumstances under which it is collected or disclosed as part of participating in the digital world.
Collecting and sharing data and metadata (or data about data) is an unavoidable byproduct of the IoT, the companies noted, and privacy protections must grow to meet that new reality.
“Inflexible doctrines that categorically foreclose any protection for data automatically generated by ordinary digital activity — or that will be generated by the yet-to-be-conceived technologies of tomorrow — are not sustainable,” they told the court.
Flexibility Is Needed
The brief made the argument while assuming that data transmitted to a third party is necessarily voluntary and thus precludes Fourth Amendment protections. The same, the companies said, applies to the carve-out from Fourth Amendment protections for “non-content.”
“No constitutional doctrine should presume that consumers assume the risk of warrantless government surveillance simply by using technologies that are beneficial and increasingly integrated into modern life. Similarly, the fact that certain digitally transmitted information might have been traditionally classified as ‘non-content’ should not unconditionally bar Fourth Amendment protection, as this data can often be highly revealing of the intimate details of a user’s life.”
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