Greg's Bite: digital privacy issues
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Greg's Bite: digital privacy issues

By Greg Mills

As the mobile computing revolution takes hold, the privacy ramifications of new mobile digital devices are dividing the courts. The legal system is trying to keep up with the existence of modern digital files using laws and court precedents based upon records written on dead trees and conventional descriptions of private space.

When the US Constitution was written the founding fathers made private our persons, houses, papers and effects. Bill of Rights Article 4: 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.

Rather than assuming the intent of the founding fathers was that the broad privacy rights we hold most basic should logically include modern technical expansion of the definition of "effects," the courts have chipped away the logical intent of our fathers.

Notice that at the time the Bill of Rights was written, everything owned by individuals was included in the amendment. Your body and those things you have in your immediate possession, everything in your home, all your papers, and even more broadly, your "effects" were to be private, notwithstanding a legal search warrant.

Unfortunately, the tendency is for exceptions to be carved out of Constitutional rights that have broader effects than the legal surgeons intended. The person and surroundings of a person being arrested can now be legally searched without a warrant or probable cause to provide for the safety of the police. Now, warrantless electronic searches are done on a smartphone a person might have on them when arrested. Only David Pogue, ever pressing technology to new limits, has used an iPhone as a weapon to assault someone and that was a domestic situation. I hear David patched things up with his wife. I like David and hope things work out for him.

One wonders how an exception for a warrantless search of a person and immediate surroundings for dangerious weapons could lead to the police sucking everything digital out of a smartphone, tablet or laptop without a warrant. That jump in logic is easily within the creative writing ability of modern judges. The US Supreme Court may rule on that issue soon. I hope they rule in favor of the traditional Ameican notion of privacy rather than to the demands of the Justice Department under Obama.

Modern smartphones hold so much private data they represent a virtual all encompassing record of a person. Who you called, when you called them, text messages, location data, written documents, email, apps you use, geo-tagged pictures, music and so much more are held on our smartphones. The "cloud" will create additional privacy issues that worry me.

Apple and other tech companies are seeking better legal protection for that information. While few of us would want to prevent law enforcement from seeking information that would help them track down terrorists, we also hate that the privacy of non-terrorists are also impinged. FaceBook even published a manual to aid police in obtaining a search warrant for information they hold on their servers. One more good reason to shun FaceBook.

"Governor Moonbeam," the now grown-up hippy of the 1960s, also known now as Governor Jerry Brown, just vetoed a bill passed by the California State Legislature, almost unanimously, that would have kept cell phones private without a search warrant based upon probable cause in California (see http://www.wired.com/threatlevel/2011/10/warrantless-phone-searches/). Who would have thought the ever liberal Jerry Brown would bend so much to law and order as opposed to basic civil liberties? Some reporters think he is pandering to the police, who supported his election efforts with big money and want all the power they can get.

In some parts of the country it requires a warrant to place a GPS tracking device on a person's car while it is parked on private property and in some states it is within the rights of the police (see http://www.phillyburbs.com/blogs/opinions/intel/know-when-the-government...).

The location data scandal Apple dealt with a few months ago was only the tip of the iceberg (see the Warrantless Tracking Paragraph at the end of this post: http://www.silive.com/news/index.ssf/2011/10/the_us_supreme_court_conven...).

The location data held by the cellular networks is much less exact than GPS but held for years by some carriers. See the chart to see how your carrier deals with your cell phone records here: http://www.aclu.org/cell-phone-location-tracking-request-response-cell-p... .

Let's hope the US Supreme Court rules that we live in the USA rather than China.

That is Greg's Bite.

 

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