DOJ's legal theory relies upon the third party doctrine. Essentially, what this means is that companies can be compelled, without a search warrant, to disclose any information that their customers have willingly given them.
One of the most important Supreme Court cases which shaped the this rule, Smith v. Maryland, focused on the legal process through which law enforcement agencies can obtain the phone numbers dialed by a suspect:
[W]e doubt that people in general entertain any actual expectation of privacy in the numbers they dial. All telephone users realize that they must 'convey' phone numbers to the telephone company, since it is through telephone company switching equipment that their calls are completed.
. . .
[W]hen he used his phone, petitioner voluntarily conveyed numerical information to the telephone company and "exposed" that information to its equipment in the ordinary course of business. In so doing, petitioner assumed the risk that the company would reveal to police the numbers he dialed.
Since that 1979 case, the government has stretched the third party doctrine, from dialed phone numbers to essentially all non-content information transmitted by a telephone, including cell site records revealing where an individual has been.
Unfortunately for the government, the Third Circuit Court of Appeals recently eviscerated the government's legal theory, finding that there is a big difference between dialed phone numbers, and triangulated geo-location information:
A cell phone customer has not "voluntarily" shared his location information with a cellular provider in any meaningful way. As the EFF notes, it is unlikely that cell phone customers are aware that their cell phone providers collect and store historical location information. Therefore, "[w]hen a cell phone user makes a call, the only information that is voluntarily and knowingly conveyed to the phone company is the number that is dialed and there is no indication to the user that call will also locate the caller; when a cell phone user receives a call, he hasn't voluntarily exposed anything at all.
After the Third circuit decision, magistrate judges took note, asking the Department of Justice to explain the reasons why cellular information should still be disclosed under the third party doctrine, rather than requiring a search warrant based upon a showing of probable cause.
On October 25, the Department of Justice responded in a brief (pdf) filed with a federal magistrate judge in Houston:
Cell phone users also understand that the provider will know the location of its own cell tower, and that the provider will thus have some knowledge of the user’s location. Indeed, providers’ terms of service and privacy policies make clear that the provider’s obtain this information.
. . .
The first of these paragraphs demonstrates that a cell phone customer will be aware that T-Mobile obtains information regarding the customer’s location. The second paragraph demonstrates that a customer will be aware that T-Mobile collects this information. The third paragraph demonstrates that the customer will be aware that this information becomes a T-Mobile business record.
Consumers read privacy policies, because we say so
DOJ's argument is essentially this:
- Phone companies disclose in their privacy policies that they have access to subscribers' location information (with citation to privacy policies).
- (. . .)
- Therefore, consumers reasonably understand that their location information is transmitted to the phone company whenever their phone is on, and thus historical location information shouldn't be protect by the 4th amendment.
What is missing, of course, is a direct claim that consumers read privacy policies. The government can't actually state this claim, because it is frankly laughable. Instead, it argues that:
The FTC and Supreme Court discuss privacy policies
The Department of Justice isn't the only part of the US government to have made official statements regarding privacy policies, and the extent to which consumers read them. The Federal Trade Commission is tasked with protecting consumers' privacy online, and officials there frequently speak about this topic.
In introductory remarks at a privacy roundtable in December 2009, Federal Trade Commission Chairman Leibowitz told those assembled in the room that:
We all agree that consumers don’t read privacy policies – or EULAs, for that matter.
Similarly, in a August 2009 interview, David Vladeck, the head of the FTC's Bureau of Consumer Protection told the New York Times that:
Disclosures are now written by lawyers, they’re 17 pages long. I don’t think they’re written principally to communicate information; they’re written defensively. I’m a lawyer, I’ve been practicing law for 33 years. I can’t figure out what the hell these consents mean anymore. And I don’t believe that most consumers either read them, or, if they read them, really understand it. Second of all, consent in the face of these kinds of quote disclosures, I’m not sure that consent really reflects a volitional, knowing act.
Echoing both of these statements, in an official filing earlier this year with the Commerce Department, the FTC wrote that:
The current privacy framework in the United States is based on companies' privacy practices and consumers' choices regarding how their information is used. In reality, we have learned that many consumer do not read, let alone understand such notices, limiting their ability to make informed choices.
Even the Chief Justice of the US Supreme Court has weighed in the issue, albeit only in a speech before students in Buffalo, NY just a few weeks ago. Answering a student question, Roberts admitted he doesn’t usually read the terms of service or privacy polices, according to the Associated Press:
It has "the smallest type you can imagine and you unfold it like a map," he said. "It is a problem," he added, "because the legal system obviously is to blame for that." Providing too much information defeats the purpose of disclosure, since no one reads it, he said. "What the answer is," he said, "I don’t know."
Academic research on privacy policies
Academic research seems to uniformly support the FTC's arguments.
Among 222 study participants of the 2007 Golden Bear Omnibus Survey, the Samuelson Clinic found that only 1.4% reported reading EULAs often and thoroughly, 66.2% admit to rarely reading or browsing the contents of EULAs, and 7.7% indicated that they have not noticed these agreements in the past or have never read them.
Similarly, a survey of more than 2000 people by Harris Interactive in 2001 found that more than 60 percent of consumers said they had either "spent little or no time looking at websites' privacy policies" or "glanced through websites' privacy policies, but . . . rarely read them in depth." Of those individuals surveyed, only 3 percent said that "most of the time, I carefully read the privacy policies of the websites I visit."
American consumers are not alone. In 2009, the UK Information Commissioner's Office conducted a survey of more than 2000 people, and found that 71% did not read or understand privacy policies.
Even if consumers were interested in reading privacy policies -- doing so would likely consume a significant amount of their time. A research team at Carnegie Mellon University calculated the time to read the privacy policies of the sites used by the average consumer, and determined that:
[R]eading privacy policies carry costs in time of approximately 201 hours a year, worth about $2,949 annually per American Internet user. Nationally, if Americans were to read online privacy policies word–for–word, we estimate the value of time lost as about $652 billion annually.
Finally, even if consumers took the time to try and read privacy policies, it is quite likely that many would not be capable of understanding them. In 2004, a team of researchers analyzed the content of 64 popular website's privacy policies, and calculated the reading comprehension skills that a reader would need to understand them. Their research revealed that:
Of the 64 policies examined, only four (6%) were accessible to the 28.3% of the Internet population with less than or equal to a high school education. Thirty-five policies (54%) were beyond the grasp of 56.6% of the Internet population, requiring the equivalent of more than fourteen years of education. Eight policies (13%) were beyond the grasp of 85.4% of the Internet population, requiring the equivalent of a postgraduate education. Overall, a large segment of the population can only reasonably be expected to understand a small fragment of the policies posted.
As the academic research I have summarized here, and multiple statements by FTC officials make clear, consumers do not read privacy policies. As such, it is shocking that the Department of Justice would, in representing the official position of the United States Government, argue otherwise before a court
I hope that responsible persons inside DOJ will take note of this blog post, contact the court, and retract their claim. I also hope that the new White House Interagency Subcommittee on Privacy & Internet Policy will take note of this issue, and make sure that this sort of claim doesn't find its way into any future DOJ legal briefs.