The Founders Didn’t Fight for Government Agency Protocols

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The Founders Didn’t Fight for Government Agency Protocols

Good news! At least one part of the federal government is entering the 21st century. The Supreme Court is demonstrating an understanding of something that we’ve all known for a while.

Whether it’s on paper, in our phones or in the cloud, our data is OUR DATA!

This past week, the Supreme Court unanimously judged that law enforcement officials must obtain a warrant prior to searching mobile phones seized at the time of arrest. This decision was reached in the case of Riley v. California.

In this case, a college student pulled over for driving a car with expired tags is possibly linked to a gang-related shooting due to the contents of text found on his mobile phone. The mobile phone was taken and searched as part of the arresting process. This “search incident to arrest” was ruled appropriate during a 1970s-era case in order to protect law enforcement and preserve evidence. However, the current decision recognizes the significant intrusion on personal privacy that occurs when reviewing the contents of a mobile phone.

“Cell phones differ in both a quantitative and qualitative sense from other objects that might be kept on an arrestee’s person,” writes Chief Justice John Roberts in the court’s unanimous decision.

In this decision, the court not only invalidates the search of mobile phones as measured against search-incident-to-arrest rules, but also justifies specifically why cell-phone data deserves protections conventionally applied to one’s house or property.

Under search-incident-to-arrest rules, law enforcement officials are permitted to search an individual in order to ensure the safety of the officers and ensure the preservation of evidence. In the justice’s opinion, neither of these criteria justified the examination of a phone’s contents.

Upon arrest, only a physical inspection of the phone is needed to verify that the device is not a weapon. The phone’s contents are typically not in danger of deletion once the phone is in custody. Even if a remote delete command were issued, simple solutions are available to prevent loss (e.g., Farady bag to shield the phone from radio signals).

When discussing the impacts of searching one’s mobile phone, the court displays an understanding of how privacy has changed in the digital age. Mobile phones possess an “immense storage capacity” and “facilitate the collection and aggregation” of different types of information. Tracking cookies from websites, emails and texts, GPS location data and various pictures and videos can all be brought together to provide a very intimate picture of one’s person. The justices noted that searching your mobile phone might provide law enforcement with more information about your life than searching your home.

In addition, the opinion hints that privacy protections may extend beyond the data stored on the device. In addition to storing private data, these phones provide access to other personal data stored on remote servers. “[c]ell phone users often may not know whether particular information is stored on their device or in the cloud, and it generally makes little difference.”

The court rejected the argument that government agencies develop protocols to address concerns raised by cloud computing. The opinion stated clearly, “…the Founders did not fight a revolution to gain the right to government agency protocols.” This opinion shows the court moving toward the recognition that it’s the personal data, and not the location of the data, that is paramount.

As the chief justice writes in conclusion, “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.”

Well said.