Many of us are never far from our cell phones. We certainly never leave home without them and landlines are becoming an anachronism. But, for all their utility, cell phones are poorly locked portals that lead directly into our private lives.
Cell phones, particularly the newer smartphones, are so useful precisely because they have the ability to store and retrieve an incredible amount of data anytime, anywhere. Almost everything about our families is stored on our smartphones: photographs, email and voice messages, schedules, text messages, and even Internet browsing histories are available to anyone with the skill and equipment to break into these devices. More importantly, smartphones can provide access to bank and credit card accounts, and even medical data. As a result, new challenges are presented for laws that protect personal information from theft or unauthorized search.
It is no wonder, then, that electronic communications privacy is becoming more important by the day. As technology advances, so does the ability of intruders to capture our sensitive financial and personal data for criminal purposes. At the same time, while law enforcement has a public interest in gaining access to the data used by criminals in the commission of their crimes, citizens have a constitutional right to be free from government agents rifling through their personal data at will.
Cell phone tracking by law enforcement is becoming an important crime-fighting tool, but a recent U.S. Supreme Court ruling asserted that a GPS tracking device placed on a suspect’s car violated his Fourth Amendment rights. This ruling did not directly involve cell phones, but since all smartphones have a built-in GPS, it raises questions about the standards for cell phone tracking as well.
On Wednesday, June 25th, however, the U.S. Supreme Court did rule on the issue of cell phone searches in a historic unanimous decision. Chief Justice John Roberts in writing the opinion said, “Modern cell phones are not just another technological convenience,” Chief Justice John Roberts wrote for the court. “With all they contain and all they may reveal, they hold for many Americans the ‘privacies of life,’ ” he said. He went on to say, “The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought. Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple – get a warrant.”
While this ruling addressed the issue of cell phone searches, the fact that so much of the data from our devices are stored by services, or actually not stored on our device but by others, the problem of protection of our data still remains.
This problem is illustrated by and article written in the Wall Street Journal June 28th. This article notes that the National Security Administration collection of phone data in 2013 increased by 50%, as reported by the agency.
Citizens need to be protected from invasions of privacy by thieves and they need to know how far the government can go in accessing their personal lives. Moreover, law enforcement and businesses need certainty about the rules for accessing personal data. While Congress and some states have taken steps to provide protections, new technology frequently outpaces the law; for example, the most “recent” federal law governing searching electronic communications was adopted in 1986.
Because these issues are important to citizens throughout the country, the matter has been taken up by the American Legislative Exchange Council (ALEC), which is a national conference of state legislators who meet regularly to share ideas on potential model policies that address today’s top economic issues. Through ALEC, I have been working with legislators from around the country to develop model policies to protect citizens both from technologically advanced thieves and from uncertainties in the nation’s search and seizure laws.
As a member of the ALEC Communications & Technology Task Force, I have been able to spend time with civil liberties groups, technology companies, law enforcement and scholars to discuss the many challenges presented by these issues. This task force has been instrumental in debating and drafting model policy known as the model Electronic Data Privacy Protection Act, which was finalized last year and made available to the public at www.alec.org.
Lawmakers need to give the courts some guidance about how far we want to go. The South Carolina Legislature has already begun addressing these issues. In 2014, I sponsored legislation which provided that data and location information stored in a cell phone or similar wireless communications device, and stored by third party vendors is not subject to a police search without a warrant. This bill was passed by the House but failed to pass the Senate by the end of the session. I plan to try again in the next session.
Three other states–Maine, Montana and Texas–have already acted to protect their citizens’ privacy by passing laws that require warrants for accessing smartphone location data and content. The model I developed with the help of ALEC draws heavily from these laws.
Smartphones have dramatically changed our lives, mostly for the better, and their utility has made them indispensable. It will certainly have renewed interest as the privacy of our personal and business communications becomes ever more critical.