Erosion of Privacy: What You Need to Know

Erosion of Privacy: Understanding the Expectation of Privacy

Here at the Nestmann Group, we regularly bemoan the erosion of our “right to privacy.” 

The root of the problem is a legal concept called the “expectation of privacy.”

The Origin of the Expectation of Privacy

Back in 1967, most Americans only had a fixed-location landline phone. The Supreme Court defined the expectation of privacy with a two-part test:

1. Whether a person “exhibited an actual (subjective) expectation of privacy.”

2. Whether “the expectation [was] one that society is prepared to recognize as ‘reasonable.'”

Based on those tests, the court ruled that before convicting a man named Charles Katz of illegally transmitting wagering information by wire (in this case, from a phone booth), prosecutors should have obtained a search warrant.

At the time, the decision was widely praised by civil liberties advocates as protecting the privacy of phone calls.

But, the legal definition was a moving target. The “reasonable” expectation of privacy that society accepts is always changing.

How Privacy Expectations Have Evolved

Over the decades since Katz was decided, the Supreme Court has ruled that police, without a warrant, can:

• Eavesdrop on your private conversations if at least one participant is an informant.

• Acquire data that you “voluntarily” turn over to someone else. This case involved telephone calling records but is equally relevant to email messages, web postings, bank account records, and much more.

• Obtain copies of deposits, payments, and other records from your bank account.

• Plant a tracking device on your property to follow your movements.

• Sneak onto your property, even if it’s fenced and contains no-trespassing signs, and look into the buildings on it.

• Search the contents of garbage placed out for collection.

• Use drug-sniffing dogs to sniff your personal belongings for the presence of narcotics or cash.

The Modern Era: Smartphones and Geofence Warrants

Fast forward to the present time, when virtually every American today carries an electronic communications device with them everywhere they go – their smartphone. We don’t use the device to protect our privacy. Instead, we use it to post on social media, tell loved ones where we are, and follow maps to our destinations.

So, we were hardly surprised when we learned in 2020 that courts were approving a new type of search. In it, law enforcement demands access to location data from every mobile device connected to a cellphone network or to the internet in a particular area and time. It’s called a “geofence” warrant. Essentially, it’s a warrant in reverse, with hundreds or even thousands of innocent people thrown into a surveillance dragnet.

Geofence Warrants in Action

It turns out that the prosecutions for seditious conspiracy and other offenses brought by Uncle Sam against some of the individuals involved in the January 6, 2021, attack on the US Capitol relied heavily on geofence warrants. Court documents show that Google released records to federal prosecutors identifying 5,723 mobile devices in a four-acre area in and around the Capitol while the breach was occurring. Even devices in airplane mode or not connected to the cellular network were identified.

The government also asked for and got data from Google on anyone who deleted location history within a week of the attack. This led to the identification of another 37 devices. And while we can’t be certain, we suspect that even individuals who turned off their mobile devices while inside the four-acre search zone might be singled out.

Surveillance Capitalism and Its Impact on the Erosion of Privacy

Geofence warrants wouldn’t be possible without another innovation: surveillance capitalism. And Google is the undisputed king of it.

Google records location data for hundreds of millions of smartphones. It stores the data in a database called Sensorvault. A data point is created each time there is an “event” on your smartphone. That could be a phone call, a text, a Facebook post, a map search, etc. But Sensorvault also records location data from apps on your phone, even if you’re not using it.

Naturally, Google is anxious to monetize this data. And it turns out that a variety of companies would love to know, for instance, if you periodically pass by their bricks-and-mortar store. They might invest in targeted ad campaigns so that a pop-up message in a social media app invites you to come inside in exchange for some benefit. The benefit could be anything from a free cup of coffee to a 20% savings on an appliance purchase.

The Profits of Surveillance Capitalism

It turns out that selling advertising, much of it based on your location data, is a wildly profitable business for Google. In 2022, Google’s parent company Alphabet recorded $54.5 billion in ad revenues.

What’s more, while we advised readers to say “goodbye to Google” nearly five years ago, it’s easier said than done. That’s because Google Search is the leader in internet searches, Google Maps is the most popular mapping app, Gmail is the biggest email service, and YouTube is the top short video provider.

And if you avoid using Google’s popular (but privacy-invasive) apps? Well, Google is still watching you. It turns out that nearly three out of four websites use the tracking tool Google Analytics. And when you visit a website that uses it, Google will gobble up your browsing history. There’s also Google Site Tag, which tracks ads served through Google’s own advertising program. Not to mention many other Google trackers designed to create targeted ad campaigns. All this tracking, of course, happens without your awareness, much less your permission.

The Need for Comprehensive Legislation

The enormous profits that companies like Google, which are engaged in surveillance capitalism, can generate means that it’s not going away. Sure, a few states are considering piecemeal solutions such as banning geofence warrants, but the only real solution would be for Congress to enact comprehensive legislation giving people more control over their data.

Until then, the courts will continue to issue decisions commensurate with our evolving expectation of privacy.

Protecting Your Privacy: Practical Advice

And that leads us to a few snippets of free advice:

1. First, leave your smartphone behind if you’re going to any type of protest. Or bring a burner phone with you instead.

2. Second, uninstall any apps on your smartphone you really don’t need.

3. Third, keep your smartphone in airplane mode and only use it on Wi-Fi networks. This will stop the phone from searching for cell service or connecting to cellphone networks.

4. Fourth, use a virtual private network (VPN) to prevent your internet service provider from seeing what websites you’re visiting. Google and other surveillance capitalists can still track your browsing activities if you use a VPN, but they’ll have a much more difficult time identifying you. The VPN we use here at Nestmann is ExpressVPN. There are others worth considering, but we’ve made the decision to deploy ExpressVPN company-wide.

As with everything else privacy-related, the surveillance capitalists and Big Brother have a vested interest in keeping tabs on you. Not only is it profitable, but an up-to-date and easily retrievable ledger makes it simple to monitor you if you ever step out of line.

That means no one will protect your privacy for you – you need to do it on your own. Now would be a good time to start.