Courts Divided Over Searches of Cellphones
by Smni Sengupta, NYR, November 25, 2012
Judges and lawmakers across the country are wrangling over whether and when law enforcement authorities can peer into suspects’ cellphones, and the cornucopia of evidence they provide. …“The courts are all over the place,” said Hanni Fakhoury, a criminal lawyer with the Electronic Frontier Foundation, a San Francisco-based civil liberties group. “They can’t even agree if there’s a reasonable expectation of privacy in text messages that would trigger Fourth Amendment protection.”
For full text of the article, visit Legality of Warrantless Cellphone Searches Goes to Courts and Legislatures – NYTimes.com.
- On police searches of cellphones, legal consensus elusive (mysanantonio.com)
- Americans’ Right To Privacy Is Taking A Huge Hit From The Courts (businessinsider.com)
- Consensus Eludes Courts in Searches of Cellphones (nytimes.com)
- Should Cell Phones Be Subject to Search Without a Warrant? (usnews.com)
- Senate bill to allow warrentless government access to your online services (pcworld.com)
As noted by Professor Daniel Solove, Orin Kerr is cited by the Supreme Court in both the majority opinion and in a concurring opinion of US v Jones for his article, The Fourth Amendment and New Technologies: Constitutional Myths and the Case for Caution, 102 Mich. L. Rev. 801 (2004). The majority opinion relies heavily on Orin’s theory of the Fourth Amendment and property that he sets forth in the first part of his article.
by Orin S. Kerr, George Washington University – Law School, 102 Mich. L. Rev. 801 (2004)
Abstract: This article argues that courts should approach the Fourth Amendment with caution when technology is in flux. When a technology is new or developing rapidly, courts should adopt modest formulations of Fourth Amendment protections that recognize the effectiveness and institutional advantages of statutory privacy protections.
The cautious approach is justified on three grounds. First, caution is consistent with existing judicial practice. The reasonable expectation of privacy test generally has been used by the courts as a term of art that remains closely tied to property law concepts. When a technology implicates privacy but not property, current judicial practice tends to avoid broad interpretations of the Fourth Amendment.
Submitted by Yevgeny Shrago Harvard Law and Policy Review, April 22, 2011 – 9:34 am
…In United States v. Pineda-Moreno, the Ninth Circuit weighed in on the growing jurisprudence surrounding police officers placement of a GPS tracker on a suspect’s car without a warrant. The three judge panel hearing the case held that this did not violate Pineda-Moreno’s Fourth Amendment rights because he had no reasonable expectation of privacy for the underside of a car parked in his driveway. Judge Diarmuid O’Scannlain reasoned in his unanimous opinion that if a neighborhood child could place the tracker, so could the cops. …
For full text of the article, visit Harvard Law and Policy Review » The Fourth Amendment and Income Inequality.
Government’s Use of Tracking Technology: More Than A Constitutional Issue?
Kevin Pomfret, Spatial Law and Policy Blog, Friday, March 4, 2011
I have written in the past about a series of recent court cases in the United States involving the Fourth Amendment and a reasonable expectation of privacy from a location standpoint. … From a legal standpoint these cases raise some very difficult and important issues regarding both the Fourth Amendment and the clearly outdated Electronic Communications Privacy Act (ECPA). I will not go into the details of either here, other than to say that courts are split in both types of cases as to whether a warrant is required before location data is collected or obtained. However, as equal importance as the legal analysis is that the public position of the Obama administration – through the Department of Justice – in each federal case appears to have been that a warrant is not required. …
For full text of the article, visit Spatial Law and Policy: Government’s Use of Tracking Technology: More Than A Constitutional Issue?.
The case of the camera in the kitchen: Surveillance, privacy, sanctions, and governance
By Ullmann-Margalit – 2008 – Regulation & Governance – Wiley Online Library
Abstract: In the summer of 2007, a member of the Rationality Center at the Hebrew University of Jerusalem took it upon himself to install a closed-circuit TV camera in the Center’s kitchen. An email explained that the camera was installed in an effort to solve the problem of cleanness in the kitchen. The camera was removed a week later: within this week, the members of the Center exchanged close to 120 emails among themselves, expressing their opinions for and against the camera, and discussing related issues. Taking off from this exchange, this article explores some of the surprisingly rich set of normative concerns touched upon by the kitchen camera incident. Among them: public surveillance and people’s polarised attitudes to it, the invasive gaze and the argument that “if you have nothing to hide you have nothing to worry about,” the efficacy of disciplining behavior through sanctions along with the problem of shaming sanctions, the notion of privacy and its arguable relevance to the kitchen case, and more. In an epilogue, I offer some reflections in the wake of the incident, connecting it to the incipient literature on regulation through observation. I find that it is precisely the smallness, concreteness, and seeming triviality of this incident that helps bring a large set of interconnected, vexing normative concerns into sharp relief.
- Through The Looking Glass: Portraits Taken Through a One-Way Mirror (blogs.forbes.com)
We would like to invite you to read Geodata Policy’s first guest blog posting by Robert Gellman. This article is timely given the update of the Electronic Communications Privacy Act (ECPA) and the recent Federal Trade Commission (FTC) report, Protecting Consumer Privacy in an Era of Rapid Change, which highlights the sensitivety of “precise geolocation data” (p. 61). Robert Gellman is a privacy and information policy consultant in Washington, DC: http://www.bobgellman.com/.
Is Privacy in Public a Contradiction in Terms?
Robert Gellman, Privacy and Information Policy Consultant
February 21, 2011
Is there such a thing as privacy in a public space? When you walk down the street, anyone can observe you, make notes about your location, appearance, and companions, and even take your picture. If so, then it would seem that you have no reasonable expectation of privacy.
However, most people would be unhappy if they found themselves followed all day. For most of human existence, this type of surveillance was impractical because of the great expense of following someone around.
This is a good place to pause and say that this is a short essay and not a law journal article. The law of surveillance is complex, and the answers can be different if the person doing the surveillance is a government agent, an employer, or an average person, or if you’re taking pictures or recording conversations.
Is privacy in public a case of the irresistible force meeting the immoveable object? Should your location privacy deserve some protection even when you are in public?
These questions are much harder to answer today because of technology. It’s cheap to track people in public today. There’s no need to pay a private detective. Technology does it. First on the list are cell phones. Your cell phone broadcasts your location constantly to a cell phone tower, and your provider knows where you are. Cameras are everywhere, taking pictures in malls, parking lots, building corridors, on the street, at red lights, and on the highway. Facial recognition software is getting better all the time. Photos placed on the Internet can be scanned to identify individuals as well as the date and GPS coordinates where the photos were taken. Digital signage in stores and elsewhere can record behavior, approximate age, gender, and ethnicity, and can sometimes identify individuals using a variety of devices. I recommend a pioneering report on digital signage by my colleague Pam Dixon. It’s at the World Privacy Forum website.
Even though not all the technological and organizational links are yet in place, it’s not hard to envision the possibility that, in the near future, every action you take outside your home may be observed and recorded by someone. This is more or less what happens today online, where there is a good chance that some website or advertiser (and probably many more than one) records every site you visit, every page and ad you see, and every click you make.