Without Consensus on Digital Rights are we Hurting the Innocent or Protecting Criminals?

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Would Boardwalk Empire’s Nucky Thompson be benefiting from our current lack of definition?

As we live more of our lives more mobile-ly — on the move, online and always within reach — it’s very clear just how useful self-created data is to understanding and piecing together lives. And it’s not just for posterity (see Twitter’s Year in Review). Responding to a Congressional inquiry, cell phone carriers said they responded to 13 million demands in 2011 from law enforcement agencies looking for text messages and other data.

What the problem? As technology is constantly steaming full-speed ahead, the law is constantly playing catch-up. Nothing could anticipate the amount of data we’re producing every day, with every action and movement, so it’s up to Congress and the Courts to weigh our modern constitutional rights. The fourth amendment right to privacy and the fifth amendment right to due process need reinterpretation.

Last year, the Supreme Court ruled that police cannot attach a GPS tracker to a car without a warrant. In this decision, the Justices used the “mosaic” theory that attempts to highlight the difference between driving on public streets and being seen in short snapshots by many different people, and having all these snapshots put together into a continuous film via all-the-time GPS location tracking. It’s the difference between someone seeing you take one step and someone seeing every step you take.

So, you’d think that there might be some consensus on GPS tracking via cell phones. Wrong.

Cell phones are slightly different because the GPS capability is built in and users are aware of it, not attached without permission by an external party. Cell phones also offer more than GPS tracking. Gaining access to a phone means messages, emails, voicemails and call records.

While the question is more complex for cell phones, a version of the mosaic theory can still be applied. Is a cell phone akin to a container (like a suitcase of car trunk)? or a computer? or a face-to-face conversation? or  is it more like the mosaic of an entire life akin to where someone travels in his or her private vehicle?

Since the Supreme Court has yet to rule on this issue (and they are the only body entrusted with reinterpreting the Constitution as necessary), federal courts  are all over the place. The Sixth Circuit Court of appeals ruled that law enforcement officials are allowed to track suspects through GPS on their cellphones. California’s Supreme Court also ruled that police can look through a cellphone without a warrant if the phone was on the suspect at the time of arrest. A Rhode Island Judge, however, threw out cell phone evidence that led to a murder charge arguing that the police needed a search warrant; and an Ohio court ruled that police need a warrant because, unlike a piece of paper that might be stuffed in a suspect’s pocket and can be confiscated during an arrest, a cellphone may hold “large amounts of private data.” Most recently, the Massachusetts Supreme Court ruled that police can search cell phones without a warrant.

It’s not much better in the state legislatures: Delaware, Maryland and Oklahoma have proposed legislation that requires the police to obtain a warrant before demanding location records from cellphone carriers. California passed a similar law in August after intense lobbying by privacy advocates, but Governor Brown vetoed the bill, raising the issue of whether the new provision struck “the right balance between the operational needs of law enforcement and individual expectations of privacy.”

We are in desperate need of  clear guidelines, from Congress and the courts, on digital due process.

In response to the conflicting demands of privacy advocate and law enforcement bodies, a Senate committee sat down last month to consider reforming the landmark 1986 Electronic Communications Privacy Act regulating how government can monitor digital “speech”. Despite being written ahead of the internet era, and way ahead of the smartphone era, the act has still been used to allow warrantless surveillance of certain kinds of cellphone data — including GPS location information.

Amendments were discussed, rewritten, re-debated and finally the Senate Judiciary Committee approved sweeping amendments that require police to obtain a warrant before reading e-mails. But, a request by law enforcement that wireless providers save text messages in case they are ever needed is still being discussed (although obviously opposed by the ACLU). And, since the DOJ has already called for new laws requiring Internet service providers to keep customer-generated data (approved by a House of Representatives panel last summer), we might be headed towards another kind of mosaic effect.

But perhaps taking every case as it comes, whether GPS, emails or text messages is better than making sweeping rulings that miss the mark. What is certainly clear from the growing mosaic is that until the Supreme Court steps in, there’s plenty of flailing around left to do.

Posted in: Constitutional, Criminal, Internet, Law, Privacy, Supreme Court