Con Law Center Articles and Publications

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Apple’s trademarked catchphrase “there’s an app for that”1 suggests that every app on a modern digital device is perfectly tailored to provide a specific, necessary convenience. Whether the user wants to check the weather, get updates on her favorite baseball team, find a coupon for her next purchase, or track her fitness and activity levels, she can use an app to fill gaps in her life that she may not have known existed. What the user might also not know, however, is that “permissions” either she or the phone’s operating system have granted to the app allow it to access functions and information on her device entirely unrelated to the app’s apparently straightforward purpose. The app’s developers might then package and sell information collected through those permissions to commercial partners,2 or, as this Article considers, divulge it to government investigators.

In the spirit of Professor Tokson’s effort to consider the next wave of Fourth Amendment cases likely to reach the Supreme Court,3 this essay addresses a looming technological challenge to the Court’s third-party doctrine: the permissions that app developers obtain on our digital devices. Such permissions—which are either granted by the user upon installation of the app or permitted by the operating system without any user input—entitle app developers to access and send data from the device, such as the user’s location services, motion sensors, contacts, calendars, social media accounts, camera, or microphone.

Carpenter contracted the third-party doctrine when government investigators collect location information emitted by a citizen’s cell phone to connect with towers in the nearby area.5 This Article considers what that decision portends for information government investigators might collect from a citizen’s cell phone and the apps that make it both enormously convenient and potentially intrusive upon personal privacy.

This Article proceeds in three Parts. Part I quickly summarizes the history and limits of the third-party doctrine following Carpenter. Part II then provides a technical explanation of apps and the permissions they obtain from users, including the scope of those permissions and their often tenuous relationship to the app’s purpose. Part III suggests how courts should apply the third-party doctrine to data that app developers collect through wide-ranging permissions, which government investigators later obtain without a warrant.

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Washburn Law Journal



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