Digital Privacy: The Good and Bad News

As many members of the Self-Reliance Institute probably noticed this week, the United States Supreme Court handed down a big win for electronic data privacy in Riley v. California.

And while we should all be pleased with the Court’s unanimous decision, we should also be mindful of the reality that our electronic communications and data remain extremely vulnerable.

So I’d like to discuss the good and the bad of the Riley decision and the reality we still face.

Before I do, here’s your free copy of the June edition of the Self-Reliance Institute Newsletter.

OK, let’s first look at the Riley decision – the good news.

Here’s how my friend Ilya Shapiro, a senior fellow in constitutional studies at the Cato Institute and editor-in-chief of the Cato Supreme Court Review, assessed the Riley ruling in his piece,“Unanimous Supreme Court Correctly Stops Police from Searching Peoples’ Entire Lives Willy-Nilly.”

In its ruling today in Riley v. California, the Supreme Court unanimously established a clear new rule for police-citizen interaction: The police can’t, without a warrant, search the digital information on cell phones they seize from people they arrest. This is a big deal because it means that being arrested for, say, not paying a speeding ticket, will no longer open you up to having your entire life examined by law enforcement. Unlike the satchels and billfolds of yore, people now carry essentially all their private documents with them at all times: address books, financial and medical records, photo albums, diaries, correspondence, and more. To allow police to review all of that information just because they happen to have arrested someone would violate the Fourth Amendment’s protection of personal papers and effects against unreasonable searches and seizures.

If the police have independent probable cause to access someone’s digital information, they can get a warrant. If they don’t, making an arrest shouldn’t give them license to go on a fishing expedition.

What’s really surprising about this ruling is that it’s both broad and unanimous. Sweeping rulings on high-profile subjects tend to split the Court, whether ideologically or, in criminal procedure cases like this one, between formalists and pragmatists. Unanimous rulings, meanwhile, tend to be cautious, splitting the baby in a way that doesn’t significantly change the law. Yet here we have a loud and unified “bright-line rule” that sets a major standard for the digital age. Kudos to the Court—and raspberries to the federal government, which has now had its expansive arguments rejected unanimously 11 times since January 2012.”

As you can see, Shapiro is pleasantly surprised that a unanimous Court created a “bright-line rule” protecting the digital information on cell phones.

I echo his surprise. It’s rare for the Court to issue such a sweeping vindication of our constitutional rights. But, thankfully, in this case they did. They’ve put much needed life back into the Fourth Amendment and the protection the Founders intended.

Here is the key language from the Court’s opinion:

Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans “the privacies of life.” The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought. Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple—get a warrant.”

So when it comes to the data on our cell phones (and, arguably, other portable electronic devices like tablets, etc.) the Court has made it fairly straight-forward. If the police want to search the device – even if an individual has been arrested – they must get a warrant.

That’s the good news.

Here’s the bad.

There are still many ways that the government can obtain your personal communications without a warrant.

This week, ProPublica, an independent, non-profit newsroom that produces investigative journalism in the public interest, updated“No Warrant, No Problem: How the Government Can Get Your Digital Data.”

As the introduction to the update notes:

The government isn’t allowed to wiretap American citizens without a warrant from a judge. But there are plenty of legal ways for law enforcement, from the local sheriff to the FBI to the Internal Revenue Service, to snoop on the digital trails you create every day. Authorities can often obtain your emails and texts by going to Google or AT&T with a court order that doesn’t require showing probable cause of a crime. These powers are entirely separate from the National Security Agency’s collection of Americans’ phone records en masse, which the House of Representatives voted to end last month.”

ProPublica then provides a chart of “Stuff They Can Get,” “How They Get It,” and “What the Law Says.” The categories include: Phone Records, Location Data, IP Addresses, Email, Email Drafts, Text Messages, Cloud Data, and Social Media.

I highly recommend that you take a look at the information provided by ProPublica. In this day and age, it’s important to know just how vulnerable your electronic communications are to government seizure.

OK. That’s the good and the bad. Let me leave you with a bit of optimism.

Given the Supreme Court’s decision in Riley, I believe we will see more recognition of our Fourth Amendment rights when it comes to our digital information from the Court in coming decisions.

But, until that time arrives, we must be aware that much of what we transmit electronically is vulnerable to government interception and seizure.

As always, you can share your thoughts and comments by writing me at [email protected]

Be safe and secure,

Rob Douglas

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