Smartphone Apps: Are They Constitutional?
When Edward Snowden revealed to the world that the NSA, an agency of the U.S. government, was using its technology to retrieve and store information from cell phone calls and e-mails, it immediately provoked concerns that the Fourth Amendment was being violated. The Fourth Amendment clearly states that information can be obtained from individuals only when the government has a very clear legal reason to do so, and law enforcement authorities can seize this information only when authorized by a warrant.
The recent explosion of applications for smartphones, or apps, suggests a new and perhaps far more serious challenge to the protections guaranteed all citizens by the Constitution.
Nowhere in the U.S. Constitution does it state that an individual has the authority to give up, sell, trade, or negotiate away the protections granted to him by the Bill of Rights. In other words, the protections provided to an individual by the Constitution exist at all times and can no more be forfeited than they can be violated by the NSA.
This new concern is provoked by smartphone apps. The question the Supreme Court must eventually decide is whether or not an individual American can, by accepting to download a free app, give away his right to privacy, his copyright rights to text and photos, and his right to be protected from unlawful search and seizure.
If these rights can be given away in exchange for free apps, then a new and more dangerous principle may be introduced into the framework of constitutional rights. The important question is whether the Constitution allows Americans to give away their constitutional rights. Are these app agreements legal?
Right now, many apps contain computer code that allow the app developer to use
the cell phone’s camera or microphone at any time, and record cell phone conversations at any time. Listening to a cell phone conversation in the past would require that the police take evidence to a court and ask a judge to sign a warrant allowing a police wiretap. Yet today, many apps effectively usurp the privacy of downloaders at the push of a phone button.
Recently John McAfee introduced an app that analyzes the code of apps and detects software that can, for example, turn on the smartphone’s camera or microphone. It then alerts the user to the fact that the code written into the app allows this sort of Fourth Amendment intrusion.
Those who produce the Apps would argue that they gave users proper notice that downloading the app and pressing the "accept" button would be giving away these rights.
But if allowed, this practice opens the door to other horrendous possibilities. If someone can give away his right to privacy, or the copyright protection to the photos he takes with his smartphone camera, then other rights can be given away. The implications of this are dangerous for the future of the U.S. For example, a state may then say that if someone applies for a driver’s license, he must first agree to allow his car to be searched by a police officer at any time, and that all occupants may be detained for three days for drug and alcohol testing. Or by a driver's license could require that the licensee give away his right to vote for any political party other than the one in power at the time the requirement is made. Then someone may give away his right to vote in national elections in return for money.
Right now these rights can be taken away by the state only after a long and arduous legal process. A convicted felon, for example, will lose his right to vote.
Up to now, a person could give away copyright rights to a photograph, for example, only by physically signing a photo release. Or he could sign away the copyright protections for a piece of music to a record company. But apps today could sneak in language that states that any music transmitted by a smartphone becomes the property of the person who developed the app. This was all made possible because written signatures were replaced by the e-signature, and now only a click of the "accept" button is required.
Just because those who wrote the U.S. Constitution could not foresee the power of smartphones does not mean the rights guaranteed to all persons by the Constitution can be forfeited. Constitutional rights are permanent and enduring, and they cannot be negotiated away from the individual under any but judicial circumstances. If rights become commodities, they can be traded away or sold. Then they can be seized by a future totalitarian political regime in Washington.
The NSA seizes personal information electronically through cell phone and e-mail channels of communication. App developers are now having persons agree to give up their cell phone and email information. Additionally, this surveillance may be turned on and off by the app developer or anyone to whom that developer assigns the agreement rights. So on the whole, it seems that the app developers’ abuse of the Fourth Amendment protections are far more broad, enduring, and egregious.
So when a person downloads an App, and in exchange agrees to barter away his privacy rights to the app developer, both the downloader and the developer are acting unconstitutionally. For once the App developer has the right to turn on the phone’s camera and microphone without notice, there is no longer any expectation of privacy for anyone within range of these devices’ ability to capture sound and imagery. This includes those in the room who did not download the App but may have their privacy compromised. This may provoke future litigation: in Illinois, it is a felony to eavesdrop on a conversation. If an app developer turns on the microphone in a user’s phone, others in the room can sue for eavesdropping.
Nowhere in the Bill of Rights does the Constitution say that a person has the right to give up his rights. The only language of the Constitution that refers to the possession of rights is in the Declaration of Independence – “endowed by their Creator with unalienable Rights” – and the amendments that state “shall not be infringed.” Congress should be presented with these issues so that a constitutionally enforceable national policy may be enacted.