Pilot Part 3: Closing a Loophole in the 4th Amendment

Jumana Musa joins EFF hosts Cindy Cohn and Danny O’Brien as they discuss how the third-party doctrine is undermining our Fourth Amendment right to privacy when we use digital services, and how recent court victories are a hopeful sign that we may reclaim these privacy rights in the future.

In this episode you’ll learn about:

• How the third-party doctrine is a judge-created legal doctrine that impacts your business records held by companies, including metadata such as what websites you visit, who you talk to, your location information, and much more;
• The Jones case, a vital Supreme Court case that found that law enforcement can’t use continuous location tracking with a GPS device without a warrant;
• The Carpenter case, which found that the police must get a warrant before accessing cell site location information from a cell phone company over time;
• How law enforcement uses geofence warrants to scoop up the location data collected by companies from every device that happens to be in a geographic area during a specific period of time in the past;
• How getting the Fourth Amendment right is especially important because it is part of combatting racism: communities of color are more frequently surveilled and targeted by law enforcement, and thus slipshod legal standards for accessing data has a disproportionate impact on communities of color;
• Why even a warrant may not be an adequate legal standard sometimes, and that there are circumstances in which accessing business records should require a “super warrant” – meaning law enforcement could only access the data for investigating a limited number of crimes, and only if the data would be important for the crime.

Jumana Musa is a human rights attorney and racial justice activist. She is currently the Director of the Fourth Amendment Center at the National Association of Criminal Defense Lawyers. As director, Ms. Musa oversees NACDL's initiative to build a new, more durable Fourth Amendment legal doctrine for the digital age. The Fourth Amendment Center educates the defense bar on privacy challenges in the digital age, provides a dynamic toolkit of resources to help lawyers identify opportunities to challenge government surveillance, and establishes a tactical litigation support network to assist in key cases. Ms. Musa previously served as NACDL's Sr. Privacy and National Security Counsel.

Prior to joining NACDL, Ms. Musa served as a policy consultant for the Southern Border Communities Coalition, a coalition of over 60 groups across the southwest that address militarization and brutality by U.S. Customs and Border Protection agents in border communities. Previously, she served as Deputy Director for the Rights Working Group, a national coalition of civil rights, civil liberties, human rights, and immigrant rights advocates where she coordinated the “Face the Truth” campaign against racial profiling. She was also the Advocacy Director for Domestic Human Rights and International Justice at Amnesty International USA, where she addressed the domestic and international impact of U.S. counterterrorism efforts on human rights. She was one of the first human rights attorneys allowed to travel to the naval base at Guantanamo Bay, Cuba, and served as Amnesty International's legal observer at military commission proceedings on the base. You can find Jumana on Twitter at @musajumana.

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A transcript of the episode, as well as legal resources – including links to important cases, books, and briefs discussed in the podcast – is available at https://www.eff.org/deeplinks/2020/11/podcast-episode-fixing-digital-loophole-fourth-amendment.

Audio editing for this episode by Stuga Studios: https://www.stugastudios.com.

Music by Nat Keefe: https://natkeefe.com/

This work is licensed under a Creative Commons Attribution 4.0 International License.