August 01, 2013, 12:26 PM — You’re driving along the interstate when you see a familiar yet terrifying sight in the rear view mirror: A cop, right on your rear bumper, lights blazing. You pull over to the side of the road and get your license and registration ready. But the cop isn’t so interested in those things. He wants your phone.
Can the cop paw through your smart phone, see who you called, read all your texts and email, check your map locations, and leer at your Snapchat photos without getting permission from a judge?
It all depends on where that road is. If you’re in the deep south or California, the answer is likely to be yes. If you’re in the far northeast or Florida, the answer is no. And if you’re anywhere else, it’s more or less up to the cop.
Kash Hill at Forbes’ The Not-So Private Parts blog has published a map that shows how different jurisdictions treat cell phone privacy. As she noted in another post, your cell phone data is much more private in Ohio than it is in California.
As Hill explains:
Red states are those where your phone can be searched when you’re arrested. Blue states are those where police need to get a warrant to take a look inside those information-rich devices. Yellow states have no precedent set yet.
The reason for this disparity is that different courts have established different rules about what constitutes a legal search under the Fourth Amendment, and which types of searches require a showing of probable cause (and a warrant).
Just two days ago, for example, the US Court of Appeals for the Fifth District held that consumers have no reasonable expectation of privacy over the location data contained in their cell phones. Other federal courts have ruled the exact opposite.
This is something that will ultimately have to be decided by the Supreme Court. But given its spotty history with regards to personal privacy, there’s no predicting which way the court will land.
The GPS giveth, and the GPS taketh away
The problem is that Fifth District court is treating location data the same as if it were any other metadata, like the number of someone you just called. It’s much more than that.
When correlated with a tiny bit of publicly available information, location data can tell the story of your life. Say you spend the noon hour every Friday at the corner of Third and Main, where there happens to be a mosque. There’s a pretty good chance you’re a devout Muslim. Or maybe you can be found nearly every night near a building in the warehouse district where 12-step groups hold meetings. Odds are you’ve got a substance abuse problem.
Drug treatment centers, gay bars, public assistance offices, activist organizations, political protests, churches, swingers clubs – all have physical locations that can be matched to cell phone records. All of them paint a portrait of you with just a few GPS coordinates. And 99.999 percent of the time, none of this is anyone else’s business.
Unless you’re a complete shut-in, where you are says a lot about who you are. And if you couple that with your Web and search history – as the NSA’s PRISM program does -- well, that’s pretty much the ballgame. Walter Isaacson couldn’t produce a more complete biography of you.