A recent appeals court ruling on smartphones should also worry gun owners, as it indicates how the courts feel about privacy rights in an era when so-called "smart gun" technology is being hailed as a partial solution to crime and violence. The decision suggests that, should such firearms become prevalent, the constitutional protections gun owners once enjoyed might be undermined.
Giving up the goods
The 4th Circuit Court of Appeals recently upheld a legal principle known as the third-party doctrine, which holds that when a person voluntarily gives information to someone else, he loses any expectation of privacy he may have previously had in that information. Further, if the police want to collect that data in bulk, they don't need a warrant to do so.
The case centered around the use of mobile signal tracking, which wireless carriers use to calculate where a particular subscriber's phone is located whenever the phone is powered on and registered with the network. It can provide a wealth of information about an individual beyond just where he's located: It can also show where you shop, where you eat, and even with whom you meet.
By using a cellphone, the courts are effectively saying you are voluntarily surrendering that information to a third party (your carrier), and you no longer have any right to privacy regarding it. As a result, the bulk collection of that data by law enforcement falls outside their usual need to show probable cause that a crime has been committed before gaining access to it.
Keeping tabs on your whereabouts
This could have broad ramifications for gun owners as politicians and activists try to push smart gun technology. One feature that has made its way into the most prominent smart gun today, the Armatix iP1, is the installation of radio frequency identification chips in handguns. If the RFID chip is too far away from a receiver, such as a wristband or ring, the gun won't fire. Proponents of the technology say it could lead to a reduction in the number of accidental shooting deaths, as well as fewer gun thefts and perhaps fewer crimes committed with stolen guns.
While there are a lot of limitations to this technology, which I discuss here, here, and here, and my Foolish colleague Rich Smith talks about here, the inclusion of an RFID chip in a gun also opens up the owner to the potential for being tracked for no reason other than lawfully owning a firearm.
This could occur as each RFID chip is assigned an electronic product code, or EPC, that provides a unique identifier for the item to which it is attached. While privacy advocates have noted that RFID chips in clothes and other personal effects can easily be defeated by killing the tag, that option is unavailable to a smart gun owner, because it would render the weapon useless to even the authorized user.
While it has also been suggested that to follow someone, an agency would need access to the database of EPCs, the appeals court decision above regarding bulk collection of cell phone data suggests there would be no hindrance to such access. It's not a stretch to see an argument being made that by purchasing the weapon that needs to broadcast its location to operate, you're voluntarily surrendering your expectation to privacy.
A coalition of organizations as diverse as the American Civil Liberties Union, Electronic Frontier Foundation, and Electronic Privacy Information Center have called the use of RFID tags on consumer products an initiative "with profound societal implications" as well as a threat to civil liberties. It's no less the case, because the consumer product happens to be a firearm.
Other smart gun technologies that have been proposed include the use of biometric identifiers like fingerprint or palm print readers. A gun would be inoperable unless a person's finger or palm print matched the one associated with the gun.
In signing his executive order in January to jumpstart investment in smart gun technology, President Obama even touted the potential for biometric recognition when he said, "if you can't unlock your phone unless you've got the right fingerprint, why can't we do the same thing for our guns?"
Yet that also means that when used in conjunction with an RFID chip, which may or may not tell who is actually carrying the weapon, a specific person can then be identified and monitored. Moreover, the courts have also held that fingerprints are immune from Fifth Amendment protections against self-incrimination. While a person cannot be compelled to provide a passcode to unlock a smartphone, they can be compelled to provide a fingerprint. So a person who couldn't similarly be forced to admit they owned a certain smart gun could be forced to submit a fingerprint to prove the same thing.
Smart guns face a tough road ahead
The courts have often lagged well behind advancements in technology when it comes to protecting privacy and often incorrectly think that just because there is a new way of doing something, a whole new relationship is needed with our right to privacy, which U.S. Supreme Court Chief Justice Louis Brandeis characterized as "the most comprehensive of rights, and the right most valued by civilized men."
Yet simply adding technology to a telephone or a handgun doesn't alter a person's basic freedoms and is no panacea. There isn't a market for smart guns right now, because consumers have largely rejected them. From practical limitations on their usefulness to the now potential loss of privacy, gun buyers, owners, and enthusiasts have shown little interest in these weapons. And because the courts are unwilling to uphold these rights as technology advances means there is unlikely to be a market for smart guns beyond a small niche of owners.
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