Digital Privacy and the Law in the United States
There are many innovations as far as law enforcement in this age of technology are concerned. But among the multitudes of positives are many questionable practices which a number of concerned individuals are saying we would be foolish to overlook.
One of these on most recent radar is the question of whether or not law enforcement can conduct cell phone and laptop searches, and when. This has been a difficult journey thus far, with many questions regarding digital information and who holds the rights to it.
Let’s Do the Time Warp
You may remember that a series of laws was passed by Congress in 1986 that went into great detail about digital communications and government monitoring and called it the Electronic Communications Privacy Act. However, in 1986, we simply did not have the wealth and variety of technology that we do today. And so, nothing about cell phones or laptops is mentioned. This is one reason why determining the law as far as digital information is concerned is proving to be so difficult for state courts to do.
Depending on your state, the lack of a warrant could see any information obtained being thrown out of court, or it could be admissible. Changes to the act are now being considered on the Federal level, but until things are resolved, the presence or lack of a warrant may be the only benchmark by which admissible digital information can be decided.
In other courts, lawmakers are attempting to determine who owns the location information that smart phones store – the cell phone providers or the owner of the device. In this situation, it appears there is much contention, due to the fact that it’s been nearly impossible to decide whether or not the consumer should expect privacy in digital communications such as text messages according to the Fourth Amendment.
What Things Look Like Now
As far as emails are concerned, law enforcement can search any emails that are more than six months old without the need for a warrant. But an amendment has been proposed which would see warrants being required to search any email, regardless of the message’s age.
Under this ruling, it would make things much easier on law enforcement to have a warrant. Having one would allow them and a judge far more certainty that a crime occurred, as in order to get one, an officer would have to show probable cause that a crime had been committed.
Without a warrant, a judge has to look at and compare other pieces of evidence submitted in order to find evidence of a crime that fits with existing precedents and laws. This could mean a ruling which could differ greatly between courts, making it difficult to set precedents for similar cases in future. Not only that, but those whose devices have been confiscated may have much more difficult time challenging the warrantless search of those devices due to the non-existence of concrete digital privacy laws.
The reason law enforcement is so eager to get their hands on the information in cell phones and laptops is because it provides a complete picture of not only your personality, but your connections. If you have a smart phone with social media and other applications installed on it, then the list of people you most commonly associate with is readily available. The same is true if you have stored a large number of contacts in the phone book of your device.
Cell phone carriers are rumored to retain information about the people you talk to using your cell phone for well longer than one year, and perhaps as many as seven years. Phone bills can also be used to discern who you talked to, and these can be in cell phone company records for three years.
However, it appears as though not all cell phone companies are created equally. There are some major U.S. carriers who do not retain the information mentioned above, in addition to dumping information from their towers on a regular basis.