Chalk one up for digital privacy, albeit with a curious caveat. On Wednesday, the Supreme Court ruled that police need warrants to search the smartphones of suspects. This is a major ruling on several fronts. First, it is one of the few Supreme Court cases to finally take into consideration the sweeping impact of 21st century technology and our modern work/life style. People today carry their lives with them on their person and up until this landmark court decision, they apparently did so at their own risk.
The primary concern about having a smartphone used to be worries about losing it or having it stolen. Little did the majority of us know that up until now, we were unprotected when carrying our devices with us.
The Fourth Amendment has just been digitized. Back in Colonial times, citizens justifiably complained about Redcoats coming into their homes, hanging out, and illegally seizing property. Today our homes are more mobile in that we carry our lives on tiny little devices. In the court's decision, the Redcoats have been replaced by law enforcement. The intent of the decision is not about our protection as much as our privacy. Europe has their emerging focus on the right to be forgotten and in America we have our newly defined right to carry technology with the peace of mind that our digital content belongs to us. Or does it? I'll get to that shortly.
The Fourth Amendment reads:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
From that definition and more than 200 years of precedent, you can see why the court unanimously voted in favor of digital privacy. This issue crosses party lines, hence the unanimous decision. Almost 50 years ago, in Katz v. United States (1967), the court ruled in favor of Charles Katz who used a public pay phone for illegal gambling. Unfortunately for Katz, the FBI was recording his conversations and arrested him accordingly. The evolution here in communication technology and the law is fascinating to witness and a surprising breath of fresh air. Granted our phones aren't public instruments, but in today's world they are extensions of ourselves that we carry and utilize in public locations.
Imagine for a second if the court had ruled against this issue. Who in their right mind would want to carry a phone in public and/or keep any personal information on it?
There is one more intriguing point to this story that many news agencies have failed to point out or comment on. This one is a bit problematic for those who are still being hoodwinked by Facebook and company. When the case was originally heard back in April, the Supreme Court justices argued and bandied back and forth about what the smartphone is and represents. Within the context of this discussion, Chief Justice John Roberts argued that smartphones contain "information that is specifically designed to be made public." He then went on to mention Facebook and Twitter in particular.
If Chief Justice Roberts views represent the court's perspective, then Facebook, Google, Yahoo, and Twitter users should be very wary. Why? Because basically, the court is defining your digital content on those sites as public information, meaning you can use all the privacy settings you want to little avail in the eyes of the government -- particularly -- and perhaps because those companies have and claim ownership/access to everything you do while utilizing their services. It appears that Chief Justice Roberts feels that if a social media company states that they have access to view and analyze your posts, content, and relationships, then that ought to be fair game for the government (and law enforcement), too. Of course we already know the extent to which the NSA has used the "back door" to access this rich trove of personalized data.
This is not necessarily an indictment against social media. I believe the Court realizes that the general public uses social media as a means of connecting with one another and sharing information amongst ourselves. And we all understand that posts on Twitter are by their very nature, "public." Yet the other aforementioned companies (and many others) that fail to build privacy-by-design into their social media services may become defined as public entities, along with their content, which is not the real intention of any of them, not even Facebook. Their true purpose is to be data vacuums, owing their entire existence to serving a smorgasbord of data to their entitled customers, the advertisers.
With companies such as Google and Facebook continuing to expand their data appetites (case and point: Facebook's new "listening" feature on smartphones and Google's recent acquisition of Skybox Imaging and their satellite fleet), it is no wonder these companies play directly into the hands of Chief Justice Roberts and therefore deserve whatever fate the Court deals them. Smartphones don't make us smart consumers; rather it is smart choices that do. Perhaps it is time for all of us to evaluate the next generation of companies that provide us with new search engines and next-generation social networks that respect our privacy and don't monitor our activity. And cheers to the Supreme Court for getting this decision 100 percent right!
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