The Agenda

Supermarket Loyalty Programs and the Death of Privacy

I strongly recommend this op-ed by Alex Kozinski and Stephanie Grace, published in The Daily last week. The premise is that the Fourth Amendment has been murdered:

It started with the supermarket loyalty programs. They seemed innocuous enough — you just scribble down your name, number and address in exchange for a plastic card and a discount on Oreos. The problem, at least constitutionally speaking, is that the Fourth Amendment protects only what we reasonably expect to keep private. One facet of this rule, known as the third party doctrine, is that we don’t have reasonable expectations of privacy in things we’ve already revealed to other people or the public.

You would, for example, have a reasonable expectation of privacy for a photograph on your nightstand  meaning the police would need probable cause and a warrant before taking a peek. But you lose that expectation of privacy when you tack the souvenir photo from Foamhenge on the office bulletin board to make co-workers envious.

Letting stores track our purchases may not appear to be permitting an intensely personal revelation but, as the saying goes, you are what you eat, and we inevitably reveal more than we thought. Have diapers in your cart? You probably have a baby. Tofu? Probably a vegetarian. A case of Muscatel a week? An alcoholic (with poor taste, at that). The cards also track the “where” and “when” of our shopping expeditions. Making a late-night run to a convenience store near your ex-girlfriend’s house? Buying posters and markers the day before a political rally? If you swiped your card, all that information is now public.

If you think police have turned a blind eye to this wealth of information, guess again. Without the protections of the Fourth Amendment, the police are free to mine the commercial databases storing our personal information without any suspicion whatsoever. Consider the case of Philip Scott Lyons in 2004: Police arrested the firefighter for arson after discovering he purchased a fire starter with his Safeway Club Card. The charges weren’t dropped until someone else confessed; not everyone will be so lucky.

Scary stuff, and it’s all true. We’re lucky to have Kozinski on the 9th Circuit. I’d love to live in a universe in which he’d be nominated to the Supreme Court. 


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