CFC Blog Post: Smart Phones and Privacy
November 29th, 2011
I want to follow up on my series of posts on the historic case currently before the Supreme Court that could determine just how much privacy smart phone users can expect in the future. The case in question seeks to determine whether law enforcement should be required to attain a warrant BEFORE tracking a suspect (or alleged suspect) using GPS technology - which all smart phones happen to now have.
Before I get to the article delving into the smart phone aspect of this case, let me provide a brief summary of how we got here: The case in question involved police covertly tracking a suspected cocaine dealer's car using a GPS device for an extended period of time without getting a warrant. Thanks to this tracking, the suspect was initially convicted. But, a ruling by the D.C. Court (by Judge Ginsburg) of Appeals overturned that decision, arguing that the use of a secret GPS tracking device on the man’s vehicle for two months violated the Fourth Amendment’s protection against unreasonable searches and seizures. The idea being, no one wants to feel as if a government agent is following you wherever you go - be it a friend's house, a place of worship, or a therapist's office - and certainly innocent Americans shouldn't have to feel that way.
The problem was that two federal appellate courts had first upheld the use of GPS devices without warrants on the grounds that we have no expectation of privacy when we are in public places and that tracking technology merely makes public surveillance easier and more effective. Now this case is being heard by the Supreme Court.
Now, in past posts I haven't focused on what this ruling could mean to ALL smart phone users, but instead, simply on the way the police tracked this particular suspect (see past posts for more detail). But let's be real, if law enforcement can argue, and win, the right to track someone's whereabouts without a warrant (or even probable cause) using a device implanted in the car, it goes to reason that this would be done in many cases through an individuals smart phone instead.
And of course, this isn't the only area in which privacy and smart phone technology are being debated. This year in California - to the dismay of civil liberties advocates - the Governor vetoed SB 914 (Leno). The legislation was a response to a recent California Supreme Court decision (People v. Diaz) allowing police to rummage through all of the private information on a smart phone as part of an arrest, including text messages and e-mails.
SB 914 would have clarified that an arrestee’s smart phone can only be accessed with a warrant, except in circumstances where there is an immediate threat to public safety or the arresting officer. The bill acknowledged that accessing the detailed, private information contained on a smart phone is fundamentally different than searching an arrested person’s wallet, cigarettes or pockets. Senator Mark Leno has announced he will bring this legislation back next year.
In fact, a secret code has just been discovered (I'll cover this in a future post), that allows your smart phone to not only track you, but take and keep every keystroke you make, and even the content of your text messages - all without the ability to even opt-out (let alone opt-in). But this is for another post, as its just breaking right now.
Back to the story at hand...here's more from a BBC News report entitled "How much privacy can smart phone users expect?":
Millions of us happily invade our own privacy every day on Twitter and Facebook, sharing personal details with the world and broadcasting our location in a way previous generations would have found bizarre. Even those who shy away from social media and new technology in general are not immune. The most basic mobile phones are in constant contact with the nearest mast, sending information about the whereabouts of their users to phone companies, who can later hand that data over to the police, if requested.
There are signs that governments and law enforcement agencies around the world are taking advantage of this increasingly relaxed attitude towards privacy to step up surveillance of citizens. The case currently before the Supreme Court, US vs Jones, hinges on whether police officers should be allowed to plant GPS tracking devices on suspects' cars without a warrant…Lawyers for the Obama administration argued that Jones did not have a "legitimate expectation of privacy" - the standard legal test in the US for the past 45 years - because his car was in a public place.
But law enforcement officers no longer have to physically plant a bug on a suspect's car or person. In the US, they are increasingly using mobile phone tracking software.
"Police officers can sit in the comfort of their own stations and use this technology to watch not just one person, but many people, over long periods of time," says Catherine Crump, an attorney for American Civil Liberties Union. This is far more invasive than traditional surveillance, she argues. "GPS tracking can actually be quite revealing about who a person is and what they value. It can show where a person goes to church, whether they are in therapy, whether they are an outpatient at a medical clinic, whether they go to a gun range."
But the London force is also reportedly using software that masquerades as a mobile phone network, allowing it to intercept communications and gather data about users in a targeted area, such as a demonstration.
Most civil liberties campaigners do not want the police banned from using new technology and accept that telecoms companies are "not the Gestapo", as Catherine Crump puts it. But, argues the ACLU lawyer: "People should not have to choose between using new technology, which is becoming increasingly commonplace and hard to live without, and giving up their privacy."
Some believe the moment when that choice has to be made has arrived.
Click here to read more.
We should consider the ramifications of all this to social movements and protests and the government's predictable desire to stifle dissent. These concerns are all the more disconcerting in light of the Occupy protests, and what we already know about how the Patriot Act was used to target peace/anti-war activists.
We are indeed reaching a watershed moment - as highlighted by the current case before the Supreme Court. As technology advances, and becomes a more and more integral part of our lives, so too is the opportunity for authorities, both corporate and governmental, to use it in ways that violate our civil liberties.
Smart phones (and the information we have/use on social media like Facebook and Twitter) represent a clear line in the sand that must be drawn...no government has the RIGHT to track our whereabouts OR access all the information now stored in this technology unless they have a warrant.