WASHINGTON – Decades after they were invented and became a staple of everyday life, mobile phones are finally finding a clear legal footing in U.S. courts.
Mobile technology has spurred a multiyear global debate touching on issues such as privacy, freedom of speech, civil rights and international relations. An American citizen’s right to privacy is guaranteed in the Bill of Rights by the Fourth Amendment, and that privacy is extended to wired telephones by Katz vs. The United States.
Mobile phones have proved to be an entirely different kettle of fish because of the multimedia aspect, since they are not landlines and they do not just transmit point-to-point, real-time voice messages.
Mobile phones transmit and retain a whole host of information, which can be directly relevant to criminal activity or terrorism. Simply treating cellphones as wireless telephones has been insufficient to answer nagging legal questions, especially in the post 9/11 world and given the sweeping surveillance powers given to the U.S. intelligence community under the Patriot Act.
Over the last few years, however, mobile phones have begun to carve out their own legal niche separate from landlines.
In 2014, the U.S. Supreme Court ruled in Riley v. California that in order to search a mobile phone confiscated in an arrest, law enforcement officials must first obtain a warrant.
Chief Justice John Roberts noted in the majority opinion: “Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans ‘the privacies of life.’ 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.”
Less than a year later, the Second Circuit Court of Appeals ruled in ACLU v. Clapper that section 215 of the Patriot Act, which allowed for the collection of mobile phone metadata, was unconstitutional. The ruling was seen by many as spurring Congress to pass the Freedom Act, which shifted the burden of bulk collection from the intelligence community – where the data therein could be accessed at will – to the wireless service providers, who now have to retain the data for an unspecified amount of time so it can be accessed by the government with a proper warrant.
Shifting the burden has left deep concerns and unanswered questions. Key among those is who is issuing the warrants?
Currently, warrants for any kind of international communication are issued to federal agents by the Foreign Intelligence Surveillance Court, a rotating panel of 11 judges whose identities are secret and who meet in Washington, D.C.
The proceedings of these meetings are also secret. In response to what is perceived by many as a continued invasion of privacy, several tech companies have started to look at encrypting phone data, which has caused the government to begin to look at diluting such encryption so it is still accessible to law enforcement.
From a letter sent to the Obama administration by several technology leaders and civil rights groups: “More than undermining every American’s cybersecurity and the nation’s economic security, introducing new vulnerabilities to weaken encrypted products in the U.S. would also undermine human rights and information security around the globe. If American companies maintain the ability to unlock their customers’ data and devices on request, governments other than the United States will demand the same access, and will also be emboldened to demand the same capability from their native companies. The U.S. government, having made the same demands, will have little room to object.”
Despite a growing consensus that cellphones are a staple of modern society and that the data contained on them are entitled to certain specific protections, it will be years before the law answers all the questions surrounding the issue, and in the meantime the pace of technology continues to advance.
