Privacy War? Or war on the Fourth Amendment?

Earlier I wrote a post about the Michigan State Police searching cell phones with intrusive scanning devices.

In a Popular Mechanics piece, Glenn Reynolds warns that “it’s the bigger picture that’s truly worrisome”:

The combination of smartphones loaded with data about you and law enforcement devices that can easily extract that information means that a privacy war is looming.

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What happens if police gain access to all this information through your phone? Courts are only beginning to grapple with this. Take the question of location tracking: One federal magistrate has held that the government must have a warrant even to obtain cellphone tracking information from a cellular carrier. The cellphone system routinely logs which cell towers contact your phone as you travel about, and that data provides a pretty good map of your whereabouts. It’s a good enough map, the court decided, that police shouldn’t be able to access it without a warrant. Likewise, the U.S. Court of Appeals in Washington, D.C., ruled that installing a GPS tracker in your car requires a warrant. However, other cases have held that putting GPS tracking devices on suspects’ cars doesn’t require a warrant–the argument is that whenever you drive your car, you’re in public view, and thus have no expectation of privacy regarding your whereabouts, so you’re not harmed by the tracking. (I feel certain, however, that if I went down to the nearest federal motor pool and installed GPS trackers on their vehicles, they’d take a different view.)

Experts have been warning of privacy threats for years, and for the most part the public has yawned. But the combination of devices that gather all sorts of information about you and law-enforcement agencies wanting to snoop on it has put us into a whole new ballgame.

It might be a new ballgame in terms of technology. But there is nothing new about the Fourth Amendment. It was intended precisely to stop this sort of governmental abuse, and it is high time we returned to that original intent. 

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.

As Glenn points out, today’s smart phones contain “a lot more information about you than your emails and the numbers in your address book.”

Your phone knows where you’ve been and what you’ve done. Consider the recent revelations that Apple iPhones actually maintain an internal file of the user’s locations, one that is copied to the user’s computer when the phone is synchronized to iTunes. These phones may store as much as a year’s worth of location data–data that could be snooped by law enforcement, creditors, jealous spouses, or– more troubling, and probably more likely–hackers, malware operators and stalkers.

The invasions of privacy that the founders intended us to protect us against were much less egregious than that, so you’d think the Fourth Amendment would have been strengthened accordingly. Yet as Professor Thomas Y. Davies demonstrates here, the courts have systematically weakened it.

So, instead of enjoying the privacy afforded by the traditional common law doctrine that the founders intended, we face routine SWAT Team raids and an all new war on privacy.

I hate repeating myself, but once again, there has been a massive failure to impart basic civics, from the top down.