The U.S. Bill of Rights
Amendment IV
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
4th Amendment to the United States Constitution
The 4th Amendment is enjoying a new popularity. Our new world of data gathering, data storage and the contracts we use to share our data are being litigated, and increasingly data is being treated as property.
Courts are using property rights to define data and define what government can and cannot do. Since the 1960’s courts have used the “reasonable expectation of privacy” as a measure for government search and seizure. The assumptions have been that if you give your data to a third party, it is no longer your data, but their data.
But as technology progresses, everyday functions provide data, your data, to third party providers without your awareness. Think about the simple act of carrying a cell phone. Your data: where you are, when you call, who you call, etc. is all provided to the cell phone provider. That is your information, your data. The fact that you signed up for a service that needs that information to perform the service is neither here nor there. It is your data.
Extend that thought to the use of Blockchain technology in contracts, bitcoin and other personal actions.
In the past, courts have maintained you don’t have a reasonable expectation of privacy when you sign up for cell service or any service. They also maintain that the data is not yours. But what is a “reasonable expectation of privacy”? It has been difficult over the years for business, government and the courts to know exactly. More importantly, the average person’s “expectation of privacy” seems to be different than the courts.
Recently there has been a trend for courts to go back to using property rights as a measure, to use the bundle of rights test to determine ownership of personal data. Using property rights law makes sense and helps clarify ownership of data and the responsibilities of those given some part of another’s data.
It is a concept we are familiar with. Owners of property frequently contract some part of their property right to another under specific conditions. A homeowner may lease his house to another giving that person the right to possession and occupancy only, but only if the tenant pays rent on time and performs other duties outlined in the lease contract. At no point would we think a property manager assumes property rights just because the property owner hires him to perform services. At no point would we expect a property manager to disclose the property owner’s private financials to others. The property owner has temporarily assigned some of his property rights and responsibilities to another: tenant gets occupancy and use, property manager fixes broken things and maintains financial records.
A similar discussion is beginning in the personal data realm. If you accept that individuals own their intelligence, own their time, own their labor, their gifts and their talents, in other words own themselves, and are entitled to the benefits of those; then you can understand that premise leads to the principle of private property rights.
The individual decides on what terms and conditions he or she will provide another with access to their property. What follows is a private contract outlining each party’s rights and responsibilities. Two parties providing goods and services to each other for compensation.
While the most recent case before the Supreme Court dealt with cell phones and government search and seizure, extend the thinking to its logical conclusion.
What is your responsibility in regard to contracting services (buyer/broker agreements, listing agreements, property management agreements,loan applications, etc.) when the data collected by you may be a property? Keeping personal data safe for privacy reasons is a different standard than a property standard.
If data has the attributes of property, then express permissions and bilateral agreements must outline precise terms and conditions in writing. Brokers, agents, appraisers, lenders, home inspectors, and other real estate professionals would be wise to review their data retention and protection policies and perhaps revisit contract language addressing personal data.
Keep your eye on the Circuit Courts and the Supreme Court as they tangle with this issue over the next few years.
Here are some articles you might find interesting:
U.S. Supreme Court Decision: Carpenter v. United States October 2017
U.S. Supreme Court Amicus Brief from CATO and CEI – Carpenter v. U.S.
U.S. Supreme Court Amicus Brief from CEI – U.S v. Coinbase
U.S. Supreme Court Amicus Brief from Center for Democracy and ACLU – U.S v. Ganias
U.S. Supreme Court Amicus Brief from CATO – Graham v. United States
Scotusblog – Carpenter v. United States
Defending 4th Amendment Privacy Protections for Digital Property
Communications and Data Meet the Fourth Amendment
Administering the Fourth Amendment in the Digital Age
Supreme Court Says Warrants Needed for Historical Cell-Site Location Data
Unreasonable: The Fourth Amendment and Indefinite Retention of Digital Data