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Open Ahmed Alrawi Thesis.Pdf The Pennsylvania State University The Graduate School A PROPOSAL FOR A LAW TO PRESERVE AND PROTECT DIGITAL PRIVACY FOR AMERICAN CITIZENS A Thesis in Media Studies by Ahmed Alrawi 2021 Ahmed Alrawi Submitted in Partial Fulfillment of the Requirements for the Degree of Master of Arts May 2021 The thesis of Ahmed Alrawi was reviewed and approved by the following: Benjamin W.Cramer Associate Teaching Professor Thesis Advisor Ford Risley Professor of communications Patrick Parsons Professor of telecommunications Anthony Olorunnisola Professor, Associate Dean for Graduate Programs and Research ii ABSTRACT The problem of third parties, such as telecommunications and digital media companies, sharing people’s private data with government agencies like the National Security Agency (NSA), has become more common in the Internet era. Private data like Internet search histories, contact lists, phone and video calls, pictures, health information, and so on are shared with the government by third parties. Such conduct leads to people’s private data being unsecured and accessible to government security agencies. Thus, a real problem exists when third-party companies share people’s private data. In addition, third parties are sharing people’s private data with the government without asking for a warrant. Such conduct has resulted in a change in the application of the Fourth Amendment and the search and seizure process. Hence, lawmakers are not sure how to deal with third parties when applying the Fourth Amendment to solve privacy issues. Therefore, this thesis posits the problem of data privacy and the Third-Party Doctrine on the Fourth Amendment to the public, as well as encouraging the federal lawmakers to establish a law to stop the sharing of people’s private data. Furthermore, this thesis proposes a new law called the U.S. Digital Privacy Protection Act that aims to solve the data privacy issue in the United States. iii TABLE OF CONTENTS ACKNOWLEDGEMENTS ..................................................................................................... v Chapter 1 Introduction ............................................................................................................ 1 Chapter 2 Literature Review ................................................................................................... 12 General Overview of Scholars’ Work on the Data Priavcy Issue .................................... 12 Scholars Works Regarding the USA PATRIOT Act ....................................................... 14 Scholars’ Work Regarding the USA Freedom Act .......................................................... 21 Scholars’ Work Regarding the Third-Party Doctrine ...................................................... 23 Scholars’ Work Regarding the New Digital Devices....................................................... 26 Chapter 3 Historical Analysis of Search and Seizure and Phone Service ............................... 31 The English Experience of Search and Seizure ............................................................... 32 The American Experience of Search and Seizure ............................................................ 36 The Development of Telecommunications from Landline Phone Service to the Internet and the Legal Challenges that Resulted ...................................................... 38 Chapter 4 Legal Analysis ........................................................................................................ 44 Katz v. United States ........................................................................................................ 44 Smith v. Maryland ............................................................................................................ 47 American Civil Liberties Union v. Clapper ..................................................................... 52 Klayman v. Obama .......................................................................................................... 56 Chapter 5 Discussion .............................................................................................................. 65 Proposed Law—U.S. Digital Privacy Protection Act (U.S. DPPA) ................................ 73 Bibliography ............................................................................................................................ 78 Court Cases .............................................................................................................................. 85 iv ACKNOWLEDGEMENTS I would like to express my gratitude to my advisor, Dr. Benjamin W. Cramer, for the support and guidance of my thesis research. Dr. Cramer’s knowledge and expertise directed my thesis on the right path. I could not imagine my master’s research without Dr. Cramer’s assistance and supervision, and I feel I am lucky to have him as my advisor. Additionally, I would like to thank Dr. Ford Risley for his assistance, patience, and motivation in my thesis research. Dr. Risley’s efforts encouraged me to include essential material in my thesis research. I am lucky to have one of the experts and eminent professors in the field of mass communication history. Further, I want to express my sincere thanks to Dr. Patrick Parsons for the direction and feedback, which led my thesis to a safe harbor. I am also lucky to have Dr. Parsons, who is one of the pillars of the telecommunications field in the U.S. and the world. Lastly, I would like to thank my late father, my mother Nahidah, my sisters Deena and Dr. Zeena, my brother Dr. Zaid and his family, my lovely wife Cigdem, my son Alibartu, my mother-in-law Leyla, my father-in-law Kemal, and my brother-in-law Ozan. v Chapter 1 The Third-Party Doctrine Most Americans live in a world surrounded by more electronics and sophisticated digital technologies. These sophisticated technologies are characterized by the fact that they store all types of data for users, including health data, social security numbers, and other types of data related to the citizenry. In the end, different types of data are brought together, thus providing a detailed picture of the lives of each and every individual. In looking closely at American law, we find that little protection is provided for the privacy of information for those electronic activities.1 Furthermore, sharing people’s private data with government security agencies may be a violation of the Fourth Amendment.2 The repercussions, when the government has personal information, might be dangerous. This is because government employees, like security ones, might misuse people’s private data when they obtain it. For example, government security employees might misuse the information obtained about specific people from a specific race or minority group against them, so people might be under extra scrutiny even though they are, in fact, innocent. The so-called Third-Party Doctrine badly distorted the Fourth Amendment and increased the rift in the relationship between the state and its citizens.3 Companies such as Verizon, Facebook, and others collect large amounts of data from users and sell it to other advertisers.4 According to Statista, telecommunication companies like Verizon and social media companies like Twitter and 1 Orin S. Kerr, “The Case for the Third-Party Doctrine,” Michigan Law Review 107, no. 4 (2009): 561-601. 2 Patrick P. Garlinger, “Privacy, Free Speech, and the Patriot Act: First and Fourth Amendment Limits on National Security Letters,” New York University Law Review 84, no. 4 (2009): 1105-1148. 3 Sarah E. Pugh, “Cloudy with a Chance of Abused Privacy Rights: Modifying Third-Party Fourth Amendment Standing Doctrine Post-Spokeo,” American University Law Review 66, no. 3 (2017): 971. 4 Asuncion Esteve, “The Business of Personal Data: Google, Facebook, and Privacy Issues in the E.U. and the U.S.A,” International Data Privacy Law 7, no. 1 (2017): 36-47. 1 Facebook shared private data of about 41% of US citizens aged eighteen to twenty-nine with government security agencies.5 Nevertheless, this only marks the beginning of the problem because, beyond that, the major telecommunications and digital media companies give the data to the state on demand. In itself, this breaches the Fourth Amendment and search and seizure process. The Fourth Amendment is not a complex and lengthy amendment,6 simply stating “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall be issued, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”7 The Fourth Amendment consists of fifty-four words and five important terms: persons, houses, papers, effects, and unreasonable.8 These five terms greatly impact the subject of privacy. In any case, the history of the Fourth Amendment has a strong relationship with the First Amendment,9 especially in terms of freedom of speech, which connects the Fourth Amendment with the subject of privacy.10 The Third-Party Doctrine suggests that corporations such as telecommunications and digital media companies might be able to share peoples’ private data when they give their private information to any of these business companies voluntarily and without any coercion or pressure to share this information.11 For instance, when somebody subscribes to a telecommunication 5 James Clement, “Online Privacy,” Statista, Mar. 22, 2019, https://www.statista.com/topics/2476/online-
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