Friday, June 27, 2014

Mobile Privacy

Anglo-American law has long regarded certain places, things, and contexts, such as the home, as particularly deserving of protection against unreasonable intrusion by the sovereign.  Notably, the Fourth Amendment of the United States Constitution offers robust privacy protection against government searches:
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.
In the dual cases of Riley v. California and United States v. Wurie, the United States Supreme Court considerably curbed governmental rights to abridge the privacy of the contents of mobile phones.  In both cases, police arrested suspects allegedly engaged in criminal activities, then seized their mobile phones.  Rather than tagging and bagging the phones, the police searched their digital contents, in both cases revealing information valuable to prosecute the defendants.  However, the Supremes found that these mobile phone searches violated the defendants' privacy rights.

The Court specifically elevates the privacy rights of owners of mobile phones (and, probably, other mobile devices).  Here is how the Court explained the expectation of privacy surrounding mobile phones:
Indeed, a cell phone search would typically expose to the government far more than the most exhaustive search of a house:  A phone not only contains in digital form many sensitive records previously found in the home; it also contains a broad array of private information never found in a home in any form—unless the phone is.
Even in isolation, Riley v. California signals a marked strengthening of privacy rights for individuals in a particularly crucial technological context where people spend an increasing part of their waking lives.  Add in the recent judicial decisions in the European Court of Justice (Google Inc. v. Mario Costeja Gonz├ílez) and the Supreme Court of Canada (Regina v. Spencer (2014 SCC 43)), and the tide appears to be turning away from the data panopticon many dread and towards the enhanced digital privacy they crave.

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