Is this the beginning of the end of the age of legal government spying?
Trevor Timm, The Guardian
Saturday 28 June 2014 07.45 EDT
The US supreme court’s unanimous 9-0 opinion this week requiring police to get a warrant before searching your cellphone is arguably the most important legal privacy decision of the digital age.
One of the most contentious issues in courts high and low right now is the extent to which your cellphone location information should fall under the Fourth Amendment’s protection against unreasonable search and seizure. Whether you’re on a call or not, your phone emits a signal to cell towers that pinpoints your exact whereabouts, 24/7. And the cops believe – as they do for most things digital – that they can get that information without a warrant. Two appeals courts have, sadly, agreed with them, but two weeks ago, the 11th Circuit Court of Appeals issued an important decision: yes, your location information should be protected.
Roberts did throw a wrench into the NSA’s main defense for what it does: self-policing. The NSA’s argument has always been essentially this: we don’t need court oversight over our massive surveillance machine because our internal privacy controls are so good.
Roberts, however, ridicules this theory in his Riley opinion: the government promised the court it would create “government agency protocols” and make sure not to abuse its power if allowed to continue searching cellphones without a warrant. “Probably a good idea,” Roberts wrote after going into detail about the historical origins of the Constitutional right to privacy, “but the Founders did not fight a revolution to gain the right to government agency protocols.”
(T)he cloud has always terrified privacy advocates because of what’s known as the “third party doctrine”, devised by the supreme court in the pre-digital era. The theory, as law professor Daniel Solove explained this week, “holds that if data is known to a third party, then there is no reasonable expectation of privacy in that data (and, as a result, no Fourth Amendment protection at all).”
But Roberts called into question this distinction when he wrote that it “generally makes little difference” whether data in your cellphone is stored locally or in the cloud. This may seem like a throwaway line, but it could hold significant sway down the road.
…but it would be nice if so.