Alas, I’ve been bad at this blogging thing of late. Much time spent on long-winded but half-completed posts. Too many other commitments, like those that put food on the table or make my kids happy. In any event, have decided to try another approach to get going again. Shorter (sometimes much shorter) entries noting an interesting story with at least some semblance of intelligent comment of some sort.
So without further ado, the story for today comes from Ars Technica. In brief, apparently there have been rulings in the US that have concluded that it’s perfectly legal for police officers to seize a mobile phone, without a warrant, and then use the information found on them, including sending communications from that phone pretending to be the owner.
The logic, from the article:
“There is no long history and tradition of strict legislative protection of a text message sent to, displayed, and received from its intended destination, another person’s iPhone,” Penoyar wrote in his decision. He pointed to a 1990 case in which the police seized a suspected drug dealer’s pager as an example. The officers observed which phone numbers appeared on the pager, called those numbers back, and arranged fake drug purchases with the people on the other end of the line.
A federal appeals court held that the pager owner’s Fourth Amendment rights against unreasonable search and seizure were not violated because the pager is “nothing more than a contemporary receptacle for telephone numbers,” akin to an address book. The court also held that someone who sends his phone number to a pager has no reasonable expectation of privacy because he can’t be sure that the pager will be in the hands of its owner.
Judge Penoyar said that the same reasoning applies to text messages sent to an iPhone. While text messages may be legally protected in transit, he argued that they lose privacy protections once they have been delivered to a target device in the hands of the police. He claimed that the same rule applied to letters and e-mail. (Police would still need to seize or search a phone or computer legally, and phones are much easier for cops to seize than computers, which generally require a warrant.)
“On his own iPhone, on his own computer, or in the process of electronic transit, Hinton’s communications are shielded by our constitutions,” he wrote, referring to both the state and federal constitutions. “But after their arrival, Hinton’s text messages on Lee’s iPhone were no longer private or deserving of constitutional protection.” Penoyar rejected Roden’s privacy arguments on similar grounds.
At first blush, I see this as a rather disturbing finding, particularly given the increasingly important role that mobile devices are playing. Can you imagine the implications of this ruling once devices such as Google’s Project Glass are in widespread use? I also do have some trouble with the logic. Suggesting that there is no reasonable expectation because the sender “can’t be sure that the pager will be in the hands of its owner” is, in my opinion, somewhat nonsensical and non-intuitive, particularly in a situation where the government is actively impersonating the owner of the phone.
I admit that I don’t have much sympathy for the individuals whose phones were seized in this particular case (drug dealers). But it doesn’t take much imagination to take the principles set out in these decisions and apply them to other, rather more disturbing scenarios.
