While the Fifth Amendment is a crucial marker of individual rights, the lack of clear definitions and changing political landscapes make its application dangerously subjective.
Your right to "plead the fifth" is a constitutional protection against self-incrimination, but it's only one component of the legal provision that safeguards your rights from unjust criminal prosecution.
The Fifth Amendment protects against double jeopardy, being forced to incriminate oneself, prosecution without a jury of one's peers, and eminent domain. The legal precedents establishing due process protect more than just criminals; everyday citizens are protected from abuse of the justice system.
The provision, in full, dictates: "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation."
In 2019, what are the limitations of these protections? Are there exceptions? What situations would require you to invoke them? What should you say to activate these rights?
While some may see "pleading the fifth" as tantamount to admitting guilt, it symbolizes your protection from self-incrimination. Cornell Law School defines the term to mean, "The act of implicating oneself in a crime or exposing oneself to criminal prosecution." When questioned by law enforcement during an investigation or during a criminal trial, an individual may refrain from answering questions or submitting requested materials to officials if it's believed that doing so may result in new criminal charges.
However, issues unrelated to criminal matters are not always protected from self-incrimination rights. For example, tax issues are not covered under the law so as to prevent individuals from withholding materials from the IRS. Furthermore, the law becomes murky when external circumstances could easily influence a person's ability to remain silent. Egregious examples of this right being circumvented include forced confessions and unjust interrogations.
As to due process, it's well known that before you can be found guilty of a crime, a grand jury of 16 to 23 people must be presented the case in private and deem that criminal charges justified. While a grand jury acts as "a kind of buffer or referee between the government and the people," an individual has a right to trial by jury. However, the Constitution's vital dictum against citizens being "deprived of life, liberty or property without due process of law" is only defined through a series of court rulings and provisions.
Of note is that due process protections are designed for individuals and application "in each case upon individual grounds." Sadly, this means that whole groups or communities are not, strictly speaking, as entitled to due process. For example, entire student bodies, teachers, or consolidated groups like protesters can be given treatment outside of lawful protections.
Lastly, eminent domain is the restricted power of the government to take private property and convert it into public use. Under the Fifth Amendment, the government can only use this power if they provide the private owners with fair compensation. However, abuse of eminent domain is fairly common.
For example, in 2019, Donald Trump defended his demand for a border wall separating the United States and Mexico under the right of eminent domain. While it was originally meant to be an economic benefit, there are no codified measurements of what constitutes "just compensation." The seizure of land by the government quickly becomes exploitative and a violation of privacy that's paramount to government theft.
While the Fifth Amendment is a crucial marker of individual rights, the lack of clear definitions and changing political landscapes make its application dangerously subjective. From due process to eminent domain, there are more exceptions than clear definitions of "justice."
By submitting your genetic material to a company, you're tacitly agreeing to share your identity and rights to your most private information.
From "fear of missing out" on social media to belligerent political differences, modern existence is increasingly alienating. As a result, more people are interested in "finding their tribe" by digging up their family origins. But genetics-testing companies like Ancestry and 23andMe take more than your DNA, they take your privacy to that information, as well. With the Golden State Killer finally arrested thanks to data mined from those genetic databases, law enforcement has proven their ability to access the company's records.
In the same vein, the government can gain access to personal information given to these sites for purposes they deem justified. For example, in 2019, Canadian immigration officials obtained DNA results from sites like Familytreedna.com and Ancestry.com in order to identify immigrants' nationality and trace their relatives. Subodh Bharati, a lawyer representing one targeted individual, told Vice, "I think it is a matter of public interest that border service agencies like the CBSA are able to obtain access to DNA results...There are clear privacy concerns. How is the CBSA able to access this information and what measures are being put in place to ensure this information remains confidential?"
While each site in question denies working with government agencies, if authorities argue that national security is at risk, then the websites "can't really say no," as immigration lawyer Jared Will explains. He condemns the exchange as "extorted consent." Bharati warns potential customers, "Individuals using these sites to look at their family tree should be aware that their confidential information is being made available to the government and that border agents may contact them to help facilitate the deportation of migrants."
Furthermore, accessing your data doesn't always take government measures. For instance, according to 23andMe's policy, "We do not share customer data with any public databases. We will not provide any person's data (genetic or non-genetic) to an insurance company or employer. We will not provide information to law enforcement or regulatory authorities unless required by law to comply with a valid court order, subpoena, or search warrant for genetic or Personal Information." Yet, there's an additional permission users are asked to agree to, reading, "By agreeing to the Research Consent Document, Individual Data Sharing Consent Document, or participating in a 23andMe Research Community, you can give consent for the use of your data for scientific research purposes."
In July 2018, 23andMe announced it was partnering with the world's ninth-largest pharmaceutical company, GlaxoSmithKline (GSK). The agreement grants GSK exclusive access to the genetic information of over 5 million users, and 23andMe received $300 million. GSK released a statement explaining their interest in genetic databases, saying, "The goal of the collaboration is to gather insights and discover novel drug targets driving disease progression and develop therapies."
While it's a universal good to create more effective and closely targeted medicine, the transactional exchange of people's most private information, their DNA, unsettles many. Peter Pitts, president of the Center of Medicine in the Public Interest, told NBC, "Are they going to offer rebates to people who opt in, so their customers aren't paying for the privilege of 23andMe working with a for-profit company in a for-profit research project?" In essence, people are paying the site to make money off their information, with no recompense.
Additionally, despite what's written in the company's policy, "the problem with a lot of these privacy policies and Terms of Service is that no one really reads them," says Tiffany C. Li, a privacy expert and resident fellow at Yale Law School's Information Society Project. While users can opt to close their 23andMe accounts or retract their permission once it's given, the company emphasizes, "Any research involving your data that has already been performed or published prior to our receipt of your request will not be reversed, undone, or withdrawn."
Lastly, there's the possibility of information leaks. In June 2016, the DNA testing service MyHeritage announced that its database of 92 million accounts had been hacked. The depth of the breach only revealed encrypted emails and passwords, but the company was targeted because the premium on genetic data is far more valuable than credit card or bank information. Hackers could hold DNA data for ransom, according to Giovanni Vigna, co-founder of the cybersecurity company Lastline. He says, "This data could be sold on the down-low or monetized to insurance companies. You can imagine the consequences: One day, I might apply for a long-term loan and get rejected because deep in the corporate system, there is data that I am very likely to get Alzheimer's and die before I would repay the loan."
Ultimately, by submitting your genetic material to a company, you tacitly agree to share your identity and rights to your most private information. As Natalie Ram, a law professor in bioethics, says, "If there is data that exists, there is a way for it to be exploited.
Here are three crucial ways the digital age complicates your protections under the Fourth Amendment.
When the Fourth Amendment codified citizens' protections against government spying in 1791, Americans couldn't say, "Alexa: turn off the lights." With technology pervasively conducting our daily errands, the amendment against illegal search and seizure is not equipped to protect digital users. In fact, David Cole, a law professor of constitutional law and national security at Georgetown University, critiques, "In the modern digital age, it means very, very little."
To be clear, the totality of the Fourth Amendment reads: "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 issue, 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."
Here are three crucial ways the digital age complicates your protections under the Fourth Amendment:
1. Law enforcement doesn't always require a search warrant to enter your home
When police want to mine your private information on suspicion that you've committed a crime, they have to meet the familiar requirement of "probable cause." Traditionally, they must convince a judge that there is a sound reason to search and/or bug your property for surveillance. True to the wording of the law, your protected personal belongings include your physical body, "houses, papers, and effects."
However, "probable cause" includes the "plain view" clause, wherein authorities have the right to enter your home if they see evidence, contraband, or suspicious materials in your home. In the age of social media, a picture, check-in, or status you post could very well justify law enforcement entering your home without a warrant. The ruling in Katz v. United States stands as the most notable example that qualifies the Fourth Amendment as only applying to situations in which "an individual has a reasonable expectation of privacy." When you're sharing the details of your life on social media sites, you waive much of that expectation.
2. Your personal information is no longer "private" from the government once shared on social media
A series of rulings in the 1960s and 1970s began to add exceptions to the "probable cause" requirement. Namely, the government does not need a search warrant to obtain any personal information that you've already shared with somebody else. Hence, the government can obtain any private information given to credit card companies, banks, or phone companies, because you've technically de-privatized the information by using those services.
Of course the same applies to any and all social media accounts. All the government needs is a subpoena, which experts say is "trivially easy to issue."
3. Your location can be tracked by the government
While it may seem obvious to be wary of broadcasting your location at any given time, some personal devices and social media sites automatically tag and record your location. Your whereabouts cease to be a topic of government surveillance when you share the information willingly (which you do by using digital services). As Justice Alito noted when presiding over the United States v. Jones, social media tools "will . . . shape the average person's expectations about the privacy of his or her daily movements." Traditional protections simply don't apply to what you publicize yourself.
How the newest viral meme could change the future.
You're probably already familiar with the viral '10 Year Challenge' meme.
You may have even participated. But for the uninitiated, you simply post a picture of yourself 10 years ago next to a current picture of yourself now. It's the sort of fun, simple premise that understandably gains traction online. It's cool seeing how your friends, family, and even strangers have changed over time, so it's no wonder '10 Year Challenge' images have taken over social media sites like Facebook, Instagram, and Twitter.
But it's also important to remember that whenever you use social media, you are a product and any information you post, including your interests and identity, can be utilized by corporations. Considering this reality, author Kate O'Neill considered a distinct possibility: that perhaps the '10 Year Challenge' was not so innocent after all - perhaps it was being used to train facial recognition algorithms.
The tweet quickly gained traction, leading Kate O'Neill to pen a piece on the topic for Wired. There, she discusses potential scenarios in which a seemingly harmless meme could be utilized to shape our future in indeterminable ways.
For instance, advanced facial recognition technology could be used to great societal benefit in helping recognize missing people. With the right algorithm at work, we might be able to accurately age up child abduction victims or other missing persons with enough accuracy to make them fully recognizable even decades later.
On the other hand, advanced facial recognition technology could potentially be utilized by insurance companies to deny coverage to people they deem likely of developing certain conditions. Obviously, the technology is nowhere near that point yet, but it's essential to consider the reach of future technology when discussing the way we put information about ourselves online in the present.
That being said, the notion that Facebook is using this meme for the purpose of facial recognition technology has detractors too. Some argue that most of the pictures people are using were already on Facebook in the first place. As such, Facebook wouldn't gain any new information from this meme. Others think the non-serious nature of many online posts would probably ruin a lot of potential data.
Still, the existence of two images, both dated by their subject as being a decade apart, creates a more accurate data sample then two images simply posted ten years apart and assumed to be accurately dated. Moreover, even current facial recognition software is adept at recognizing human faces, so joking content would likely not be as big a hindrance as some might imagine.
All that being said, Facebook denies any direct involvement with the popularity of this meme. A spokesperson told O'Neill: "This is a user-generated meme that went viral on its own. Facebook did not start this trend, and the meme uses photos that already exist on Facebook. Facebook gains nothing from this meme (besides reminding us of the questionable fashion trends of 2009). As a reminder, Facebook users can choose to turn facial recognition on or off at any time."
Not to say that Facebook is being honest here, but chances are that this really is just a harmless meme being pushed by users who find it fun. Even if Facebook could possibly use it for technological advancement, there's probably no conspiracy at play. But the larger conversation about the way we freely supply data about our lives to companies online is still entirely relevant.
Before you post anything online, always consider how that information could be used in the future. Do you really want that out there?
Facial recognition technology is getting better, and every industry from fast food to law enforcement is beginning to utilize it.
About six months ago, Chinese conglomerate Alibaba released technology that allows customers to pay for goods via facial recognition. The tech giant, now worth over 500 billion dollars, chose KFC as the testing ground for their new payment method; a logical move, considering Alibaba is invested in Yum! China, the company responsible for every KFC, Taco Bell, and Pizza Hut operating within the country. This "Smile to Pay" method is possible because of Face++, a company that focuses on facial and body recognition technology. And the commercial sector isn't the only area that's investing heavily in facial recognition tech in China. There are train stations in Beijing that use facial recognition (based off of government IDs) to print out tickets, and many office buildings (including Alibaba's headquarters) are phasing out key cards in favor of this newer security measure. Still, the most common usage of facial recognition –and possibly the most difficult to come to terms with– is the identification of potential criminals.