When Opt-Ins are Illusory – The Fifth Circuit has Something to Say

August 15, 2024

Privacy Plus+

Privacy, Technology and Perspective

This week, let’s highlight last week’s 5th U.S. Court of Appeals opinion in United States v. Smith, finding geofence warrants unconstitutional, and in the process, challenging the voluntary nature of the “electronic opt-in process.”

United States v. Smith, No. 23-60321 (5th Cir. Aug. 9, 2024)

 In Smith, the Fifth Circuit examined the constitutionality of geofence warrants. The Court concluded that geofence warrants, which allow law enforcement to identify all devices within a specific area at a given time, are unconstitutional under the Fourth Amendment, which guarantees individuals the right “to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”

This decision itself is significant because it splits from the Fourth and Eleventh Circuit's stance that geofence warrants do not implicate the privacy concerns under the Fourth Amendment.

You can review the Fifth Circuit opinion in full by clicking on the following link:

https://www.ca5.uscourts.gov/opinions/pub/23/23-60321-CR0.pdf

Note that the opinion includes “A Primer” on geofence warrants that is worth a read.

Our Thoughts

 The Fourth Amendment issues in the Fifth Circuit’s opinion appear front-and-center in the opinion, but the Court’s commentary on the so-called "electronic opt-in processes" is particularly intriguing.

We have written before about the foundation of privacy governance in the United States, noting the fundamental role of “notice and consent” (a/k/a the “electronic opt-in process”) —that is, the requirement that companies to give consumers clear, upfront, and complete “notice” about what personal information is collected, used and shared, so consumers can make informed decisions about whether to proceed online (“consent”). You can click on the following link to read our now many-years-old post:

https://www.hoschmorris.com/privacy-plus-news/privacy-plus-june-1-2019

 In Smith, the Fifth Circuit also critiques the effectiveness of notice and consent mechanisms, labeling them as "hardly informed and, in many instances, [perhaps] not even … voluntary." The Court highlights how extraordinary it is that nearly 592 million users would supposedly "opt-in" to pervasive location tracking, and questions whether such “consent” can be truly knowing and voluntary. As the Court observes, simply clicking “YES, I’M IN” while setting up a service does not amount to a conscious forfeiture of Fourth Amendment protections over “years of precise location data.”

This criticism may reflect a dawning recognition, at least in the Fifth Circuit, that “notice and consent” regimes may be becoming increasingly inadequate to safeguard privacy rights, especially as privacy notices become longer and longer, and more and more tedious. 

We share very few of the present Fifth Circuit’s views, but if we are reading Smith correctly as showing an emerging skepticism of “notice and consent,” then we do share that. In our view, “notice and consent” may work adequately in the securities context where prospectuses and updates may be pored over by sophisticated parties and financial advisers, but it does not work well at all in the privacy context where the people who are supposed to be given “notice” and return their “consent” are ordinary, busy consumers in a world where personal data is sought, marketed, sold and share in more complicated ways every day.

We have never heard our view (or perhaps, one may hope policymakers’ view someday?) expressed better than by a fellow of the Berkman Klein Center for Internet and Society who once said, “I don’t want you to tell me all about how you’re going to scr-w me and then ask for my consent. Just don’t scr-w me.”

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Hosch & Morris, PLLC is a boutique law firm dedicated to data privacy and protection, cybersecurity, the Internet and technology. Open the Future℠.