Gaps in the Fourth Amendment -- Exploited?

Here is another essay that I wrote for my security class. This was actually my last time attending this class, as the semester is pretty much over with the exception of the final exam.  During this final class, we touched on laws concerning electronic privacy and the reality is that the Federal government does not protect it. This is an opinion essay, so please do not assume anything factual.  While I did do research on this particular topic, I am sure there are many that might disagree.
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In most cases, individuals have the right to some expectation of privacy.  It is likely that the individual has some reasonable expectation of privacy depending on the circumstance.  The Fourth Amendment to the United States Constitution is supposed to protect U.S. citizens from unreasonable searches and seizures and requires any warrant be judicially sanctioned and supported by probable cause.  The purpose of this amendment is to prevent the abuse of search and seizure procedures. The Fourth Amendment is supposed to protect privacy, but the antiquated amendment does not appear to cover modern aspects such as electronic communications.  This appears to be more of a problem, as citizens inadvertently give up their rights more and more.

            In most business settings, users are required to sign an agreement if they are granted computer access.  While it is not unusual for the user to acknowledge that it is likely that their activity can be monitored, it is not likely that users understand that this agreement voids any reasonable expectation of privacy they may have. This is currently being exploited by the U.S. Federal Government: If users waive their rights to privacy, their privacy is no longer protected under the Fourth Amendment.  When an employer gives up their right to privacy, whether it be an e-mail policy or other IS policy, that individual no longer has any control as far as who is allowed to view this data. Granted, there may be policies in place that limit visibility amongst other employees within the workplace, but there is nothing stopping the U.S. government from seizing that information for whatever purposes they see as reasonable.

            The Department of Justice argues that when you give up your electronic privacy to your employer, “you waive any Constitutional claim to privacy if the government decides to just take it – even without the knowledge or consent of the employer” (Rasch, 55).  The reason for this is that the Fourth Amendment, as it is presently written, protects only legitimate privacy rights.  Theoretically, if privacy rights are waived once an agreement is signed, privacy rights no longer exist and therefore employees are not protected under the Fourth Amendment. While this is unethical, it is not necessarily against the law.

            Realistically, individuals are forced to give up their expectation of privacy. People are required to use networks and systems at work that require them to sign an agreement. When creating an email address, users are required to agree to the terms and conditions – regardless of what they include – in order to create that account.  When someone switches Internet Service Providers, they sign away a right to privacy.  Users are led to believe that their information is private and secure, but technically speaking, agreements imposed by employers and companies that provide electronic services are not protected under the Constitution. 

The fact that there is no Federal law that applies to electronic privacy is behind the times. To apply an amendment that was adopted in 1792 to a modern society in 2013.  Privacy has become an important concept, yet it is not protected under Federal law. The word “privacy” is not explicitly mentioned in any part of the United States Constitution.  The Ninth Amendment to the Constitution declares that just because a right is not explicitly mentioned in the Constitution, it does not imply that the government can infringe on that right. It is assumed that the individual has no privacy rights. If privacy is not something that is covered in the Constitution, is it not against the Ninth Amendment to infringe upon that right?

To say that an agreement means that an individual does not have some reasonable expectation of privacy is invalid. Unless it is clearly stated in the agreement, users have a right to privacy as it is related to the outside of that particular organization. Individuals do not expect their information to be shared with third parties. This is a reasonable expectation of privacy, and technically speaking it is unconstitutional to revoke that right as the Federal Government. People are not often required to sign away their “persons, houses, papers, or effects” as protected under the Constitution. Today, people are more complex than houses, papers, and effects and amendments and laws should be made to reflect that.  Unfortunately, it appears that it is left up to the individual States to protect the electronic privacy rights of citizens.

Rasch, Mark. E-mail privacy to disappear? 2 November 2007. 7 August 2013.
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