I Am Not A Lawyer, But…
The justification for cops being able to obtain data directly from your phone or telecom is based largely on the 1979 case Smith v. Maryland. In Smith, the US Supreme Court ruled that the cops could legally obtain the phone numbers dialed by a suspect in a criminal case directly from the phone company. The suspect, the Supes ruled, had voluntarily given the numbers to Ma Bell, and thus no longer had a “reasonable expectation” they would remain private.
In Smith it wasn’t even a choice: To use one’s phone, one has to dial numbers, and the phone company has to know what numbers were dialed. The notion that this information was offered up voluntarily is a joke. Yet this has been the legal basis for tens of thousands of police investigations ever since, and similar rules have been applied to email and other electronic communications.
The implications of this are broader than just phone numbers. Smith has been used to justify the procurement of any “business record” from any entity. The Patriot Act goes a step farther and allows law enforcement to not only demand records from businesses, it forbids them from telling you about it, so you can’t even lodge a legal protest.
In the age of the Internet, everything we do is shared with something or someone. Everything is a “business record.” And thus everything is fair game to the feds.
19th century jurisprudence for a 21st century world
The justices in Smith and in other courts seem to have a fundamental misunderstanding of what the word “privacy” actually means.
Privacy is not a state of perfect anonymity. It does not mean “no one else knows anything else about me.” Privacy means “I control – as much as it’s possible to control – what others know about me. I choose to share certain information with certain parties.” It does not mean that once I’ve shared information with one other party I lose all rights to it.
As I’ve written elsewhere: People tell their doctors things they wouldn’t tell their boss. They tell their divorce attorneys things they wouldn’t dream of telling their soon-to-be ex-spouse. They share secrets with friends over drinks they wouldn’t (or at least shouldn’t) post on Facebook. And so on.
It’s called selective disclosure. It happens to all of us, every day, many times a day. And if your doctor tells your boss about your terminal condition, or your attorney spills the beans to opposing counsel about that dirty weekend you spent with your old high school sweetheart, there can be serious legal consequences.
The problem is that there aren’t serious legal consequences to sharing other types of information. But there should be. I spend in excess of $2000 on cell phones every year for my family. I expect my data to be treated with respect and confidentiality, the same way my doctor treats my medical history with respect and confidentiality.
Don’t misunderstand me. I’m not saying suspected criminals (or terrorists) should never be forced to reveal the contents of their smart phones. But I want a judge to make that determination, not just anybody with a badge.
Got a question about social media or privacy? TY4NS blogger Dan Tynan may have the answer (and if not, he’ll make something up). Follow him on Twitter: @tynanwrites. For the latest IT news, analysis and how-to’s, follow ITworld on Twitter and Facebook.
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