Is there still a right to privacy with regard to electronic data?

T Clearwater , Staff Writer

In the United States, we recognize the people have a right to privacy. But we’re seeing a growing number of court cases where the right to privacy is no longer recognized when it comes to electronic data. 

For example, according to media reports, authorities in Nebraska accessed private Facebook messages between a teen and her mother in relation to an investigation of the termination of a pregnancy that ultimately resulted in charges being filed. 

Meta, the company that owns both Facebook and Instagram, turned over message records to authorities when given warrants, which led to additional charges. 

This move from authorities to access private data is gaining traction in courts, including here in Wisconsin.  

In 2016, George Burch (now deceased) gave authorities permission to search his texts for his alibi after he was accused of a crime. Authorities downloaded the full contents of his phone, going well beyond the consent given for the court case.  

There has been questions as to whether it was an illegal search and seizure, since authorities went outside the scope of the investigation. In a direct statement given to WBAY television by Burch’s lawyer Ana Babcock, “In this case… it is very clear that consent was limited.” Babcock represented Burch during his appeal to the Wisconsin Supreme Court on matters invoking the Fourth Amendment when it comes to what data can be obtained from electronic devices.

It was upheld that all electronic devices’ data were admissible. 

But Justice Brian Hagedorn said in an interview that the initial download was beyond what Burch consented to and that the continued and further use of illicitly obtained data went beyond expectation of privacy that one would consider reasonable.  

In a way, authorities and Meta are sharing an individual’s private information and, in a sense, directly violating their right to privacy. 

In their public defense Meta has claimed that they are working on end-to-end encryption to prevent anyone besides the involved parties, the sender and receiver(s), from being able to see the messages sent using their platforms.  

This means investigators would be unable to illicitly search through the user’s information on their platform, let alone download that data illicitly.  

Again, can that save them?  

I also want to know, what has taken them so long to consider such a policy and encryption? 

Meta has long been under fire for selling information to other parties for things such as targeted ads and otherwise not protecting people against being hacked or resorting the accounts when hacked or mass attacked by trolls. 

Another notable mention I am aware of, is a Norwegian cosplayer named Culifax. They are someone I have been a follower of for a while and they are considered a cosplay celebrity, yet at no point has Instagram felt they could determine that their account has been hacked because they allege, they cannot prove, nor disprove, their identity.  

They themselves and many others, myself included, have done so much to try and aid in the recovery of their account, which includes direct communications and testimony that they are indeed themselves.  

Thanks to the community the hacker, who has been trying to scam followers out of money, has nearly stopped using the account, blocked dozens of people and changed the username to “NotImportant.”  

Culifax has taken to editing their photos and videos to include text of their name and anyone else with them. I very much understand the feeling that it could take away from the work and the art of it but it’s often a needed protection artists ought to use, so I am glad to see that they have done so. 

They had to do all of this work even though Meta can still access all their information, all of everyone’s information, all of everyone’s messages – yet they still can’t prove that Culifax is themself. Yet, the messages on their platforms can be used to persecute people in court.  

So I ask again, do you think the Meta platforms are going to continue to survive with this type of harmful behavior to their users?