Associate Director of Technology Studies Ryan Radia talks about how to prevent data privacy violations in the Internet age. Your data may be safe if it’s stored on your personal hard drive. But if it’s in the cloud, as with Gmail or Dropbox accounts, you can’t count on the Fourth Amendment to protect you against unreasonable search and seizure. Radia suggests some reforms to outdated laws to better reflect today’s technological realities.
Fourth Amendment
The smartphone is arguably one of the most empowering and revolutionary technologies of the modern era. By putting the processing power of a personal computer and the speed of a broadband connection into a device that fits in a pocket, smartphones have revolutionized how we communicate, travel, learn, game, shop, and more.
Yet smartphones have an oft-overlooked downside: when they end up in the wrong hands, they offer overreaching agents of the state, thieves, hackers, and other wrongdoers an unparalleled avenue for uncovering and abusing the volumes of sensitive personal information we increasingly store on our mobile phones.
Over on Ars Technica, I have a long feature story that examines the constitutional and technical issues surrounding police searches of mobile phones:
Last week, California’s Supreme Court reached a controversial 5-2 decision in People v. Diaz (PDF), holding that police officers may lawfully search mobile phones found on arrested individuals’ persons without first obtaining a search warrant. The court reasoned that mobile phones, like cigarette packs and wallets, fall under the search incident to arrest exception to the Fourth Amendment to the Constitution.
California’s opinion in Diaz is the latest of several recent court rulings upholding warrantless searches of mobile phones incident to arrest. While this precedent is troubling for civil liberties, it’s not a death knell for mobile phone privacy. If you follow a few basic guidelines, you can protect your mobile device from unreasonable search and seizure, even in the event of arrest. In this article, we will discuss the rationale for allowing police to conduct warrantless searches of arrestees, your right to remain silent during police interrogation, and the state of mobile phone security.
You can read the full essay on Ars Technica here. And while you’re at it, I highly recommend watching this informative YouTube video that explains why it’s not a good idea to talk to police:
Well, you can forget the airports-only naked body scanners — they’re now coming to a neighborhood near you. Forbes reports that “American Science & Engineering. . .has sold U.S. and foreign government agencies more than 500 backscatter X-ray scanners mounted in vans that can be driven past neighboring vehicles to see their contents.”
My take: This whole War on Terror is getting out of hand. What happened to the Fourth Amendment (i.e., no unreasonable searches and seizures without probable cause)?
The Department of Homeland Security’s mission statement says that their ”overriding and urgent mission is to lead the unified national effort to secure the country and preserve our freedoms. . . . The citizens of the United States must have the utmost confidence that the Department can execute both of these missions ['both' refers to terrorism and natural disaster response].”
“Preserve our freedoms”? How does having federal agents put their hands down my pants or take naked photos of me preserve my freedom?
“Citizens of the United States must have the utmost confidence”? What does “must” mean? Quite frankly, I don’t think the government could run a lemonade stand efficiently.
As my colleague Hans Bader astutely pointed out in a recent blog post, the government failed to stop the Christmas bomber last year and that the “TSA often fails to detect explosive ingredients and fake bombs in performance tests. A study found that the TSA is more than twice as likely to fail to detect a bomb as the private security firms it replaced.” Ask the people of New Orleans how satisfied they are with DHS’s FEMA response to Hurricane Katrina.
It’s about time to have a chat about national security and freedom. Unfortunately, we have to recognize that there’s a trade-off involved that is all too easily ignored. If freedom is our end, we have to recognize that the means to “preserve” it might undo the whole thing.
Most car thefts happen to unlocked cars. The government of Bucks County, Pennsylvania, thinks it can help. It plans to issue $25 fines to people who forget to lock their cars. First-time violators get off with a warning.
Bear in mind that enforcing this policy involves police systematically trying to break into peoples’ cars. First, that’s inherently creepy. Second, that’s a significant privacy violation. It’s also a Fourth Amendment issue. If an officer stumbles upon something illegal and decides to prosecute, he has performed a warrantless search.
It’s also a safety issue. If a thief decides to play dress-up and look like an officer, he could very easily steal valuables from parked cars in broad daylight and no one would be the wiser.
One more problem to add to the pile is corruption. A legitimate officer might be tempted to give himself a quick pay raise at a forgetful car owner’s expense. Policing for profit is all too common.
Better for the government to stay out of this one.
For most people, the TSA is merely an annoyance. We grudgingly play our part in security theater so we can get where we’re going. But for Kathy Parker, the TSA is something far more serious (via Steve Horwitz):
“Everything in my purse was out, including my wallet and my checkbook. I had two prescriptions in there. One was diet pills. This was embarrassing. A TSA officer said, ‘Hey, I’ve always been curious about these. Do they work?’
“I was just so taken aback, I said, ‘Yeah.’ ”
What happened next, she says, was more than embarrassing. It was infuriating.
That same screener started emptying her wallet. “He was taking out the receipts and looking at them,” she said.
“I understand that TSA is tasked with strengthening national security but [it] surely does not need to know what I purchased at Kohl’s or Wal-Mart,” she wrote in her complaint, which she sent me last week.
She says she asked what he was looking for and he replied, “Razor blades.” She wondered, “Wouldn’t that have shown up on the metal detector?”
In a side pocket she had tucked a deposit slip and seven checks made out to her and her husband, worth about $8,000.
Her thought: “Oh, my God, this is none of his business.”
Two Philadelphia police officers joined at least four TSA officers who had gathered around her. After conferring with the TSA screeners, one of the Philadelphia officers told her he was there because her checks were numbered sequentially, which she says they were not.
“It’s an indication you’ve embezzled these checks,” she says the police officer told her. He also told her she appeared nervous. She hadn’t before that moment, she says.
She protested when the officer started to walk away with the checks. “That’s my money,” she remembers saying. The officer’s reply? “It’s not your money.”
Read the whole thing. If the Fourth Amendment had any force anymore, the TSA would have been abolished years ago. It is well past time for President Obama and Congress to consider that step. It would certainly do wonders for them in the polls.
Lawyers for the U.S. government and the Swiss bank UBS AG have announced that they have reached a deal on releasing to the US the names of UBS account holders. No new details of the agreement have been released, other than what was previously speculated on a week ago.
I will be watching for and examining details that are released. Whatever deal is reached, the Obama administration’s conduct in the case, disregarding both privacy interests and the sovereignty of other nations, has been deplorable. It has set a precedent that could endanger U.S. competitiveness as well as civil liberties throughout the world.
As Fred Smith and I had explained in a Washington Times op-ed, after UBS, with the Swiss government’s full cooperation, turned over the names of 250 customers suspected of violating U.S. tax laws, the U.S. government turned around and asked for a whopping 52,000 names. The Swiss government objected to such a fishing expedition as violating the nation’s privacy laws.
Switzerland rightly argued that such a large volume of names could not be justified by probable cause or “reasonable suspicion,” a condition of the tax treaty Switzerland had negotiated with the U.S. In addition, such a fishing expedition goes against the spirit of the Fourth Amendment of the U.S Constitution, which protects Americans from “unreasonable searches.” A forensic analysis commissioned by UBS from Alix Partners (scroll down the right side of this page to open the PDF) found that many international students, diplomats, and Americans who work in Switzerland – and banked in Switzerland by necessity — could have been swept up in this dragnet.
It’s far from clear if the shoe were on the other foot, and a foreign country were to demand the names of 52,000 customers of an American bank, the U.S. would have complied. The United States Model Income Tax Convention of 2006, used as a template by the U.S. to negotiate tax treaties, states that no country should be required to honor “a request in which a Contracting State simply asked for information regarding all bank accounts maintained by residents of that Contracting State in the other Contracting State, or even all accounts maintained by its residents with respect to a particular bank.”
Previous reports had indicated that UBS would surrender 5,000 names, a large amount but still less than a tenth of what the U.S. had originally called for. It will be important to scrutinize if there is indeed “reasonable suspicion” for however large the volume of names that are released. American civil liberties advocates on whatever side of the political fence should be alarmed by the U.S. government’s sweeping disregard of privacy interests in its demands to the Swiss, and should encourage their home country to never treat privacy and another country’s sovereignty so cavalierly again.
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