Law moves slow — sometimes very slow — and technology moves very fast in comparison. The result is that we often treat new innovations the same way as older tools in the eyes of the law, and that creates some illogical and difficult situations when it comes to law enforcement and justice. In a human rights context, this has played out with export controls in recent years, where the US actually kept people in Iran, Syria, Sudan, and elsewhere from accessing otherwise-ubiquitous services like web browsers and social networks, simply because they couldn’t make a distinction between digital tools and other products when crafting sanctions.
It’s a bit like if we had speed limits from the horse-and-buggy age in a world where there are Ferraris. Or, when it comes to video, if we thought about Sony BMC-100Ps from 1993 the same way we think about Google Glass.
So it was very encouraging this week to see the US Supreme Court — not the most tech-savvy folks in the world, to say the least — make the case for thinking about smartphones differently. Here’s the situation: The US government argued that your smartphone is just like a scrap of paper, piece of ID, or anything else they may find in your pockets. That means that police have the right to go through your phone just like they have a right to go through your pockets — no warrant needed.
But your phone isn’t a phone — it’s a camera, it keeps a record of all your communications, it saves your web searches, and a whole lot more. And the Supreme Court said the same:
“The storage capacity of cell phones has several interrelated consequences for privacy. First, a cell phone collects in one place many distinct types of information—an address, a note, a prescription, a bank statement, a video— that reveal much more in combination than any isolated record. Second, a cell phone’s capacity allows even just one type of information to convey far more than previously possible. The sum of an individual’s private life can be reconstructed through a thousand photographs labeled with dates, locations, and descriptions; the same cannot be said of a photograph or two of loved ones tucked into a wallet. Third, the data on a phone can date back to the purchase of the phone, or even earlier. A person might carry in his pocket a slip of paper reminding him to call Mr. Jones; he would not carry a record of all his communications with Mr. Jones for the past several months, as would routinely be kept on a phone.”
The implications of this decision for activists, journalists, and others are clear, and it’s a win for privacy and digital rights. In an ideal world, courts wouldn’t have to pick up the slack for legislators when it comes to these issues and it wouldn’t be so noteworthy when they show flashes of tech competence, but for now let’s hope to see more decisions like this in the future, and not just in the US.
Above image from Wikipedia “Photophony” from Alexander Graham Bell article.