right to privacy

The U.S. Supreme Court unanimously ruled that police officers may not search the cellphones of people they arrest without warrants yesterday. As The Washington Post's Craig Timberg writes, even though the National Security Agency is not mentioned in the opinion, the court's ruling could impact the future of government surveillance and the contours of digital-age privacy. Legal scholars noted that the opinion was unanimous and that the language was forceful that "the vast troves of information police can find in modern cellphones are no less worthy of constitutional protection than the private papers that Founding Fathers once kept locked in wooden file cabinets inside their homes," Timberg reports.

The U.S. Supreme Court ruled that it is an unconstitutional search and seizure for police officers to search someone's cell phone when arresting them, Volokh Conspiracy's Orin Kerr reports. The court said the searching a cell phone doesn't ensure that officers won't be harmed or that evidence won't be destroyed, which are both reasons that officers are allowed to search arrestees while taking them into custody: "'There are no comparable risks when the search is of digital data. In addition, [United States v.] Robinson regarded any privacy interests retained by an individual after arrest as significantly diminished by the fact of the arrest itself. Cell phones, however, place vast quantities of personal information literally in the hands of individuals. A search of the information on a cell phone bears little resemblance to the type of brief physical search considered in Robinson."

Kentucky is the latest state to consider legislation to prohibit the warrantless use of drones by law enforcement, the Kentucky Enquirer reports. A Northern Kentucky legislator is reintroducing a bill to bar law enforcement agencies from using drones to gather evidence without warrants. Fourteen states have passed laws limiting the use of drones, the Enquirer reports.

Meanwhile, there are three drone bills pending in Pennsylvania, including two bills to bar drone interference with hunting and fishing.

Two separate reports are showing the privacy issues raised by the growing use of drones.

The Hartford Courant's Kelly Glista reports about how a beachgoer called the police because a teenager was flying his drone at the public park. He wasn't breaking any laws, but the incident raised the question of what expectation of privacy people have in a public place: "The right to personal privacy is both profoundly valued and highly debated in the U.S., but the advancement of technology has blurred the line between what is public and what is private, from cellphone records to emails and information posted to social media. In Connecticut and around the country, drone technology is quickly becoming the next arena for that debate." Lawyers told the Courant that drone operators are like photographers: Photographing strangers in a public place is legal until the activity becomes harassing or a nuisance.

Matt Riedl, writing for the Wichita Eagle, out of Kansas, reports "interest in personal drones – which can cost as little as $1,000 to set up – has been rising exponentially. Consequently, local drone enthusiasts say the FAA is going to have to update its policies in the coming years to accommodate what they believe is a revolutionary and profitable technology." Lawyer Patrick Hughes told the Eagle that using a drone to do something you can normally do isn't going to change the law, but privacy issues could arise depending upon how drones are being used. The parameters for privacy and drone usage will likely develop out of FAA regulations or federal legislation, Hughes said.
 

ProPublica's Julia Angwin reported this week on how marketers' tracking of customers is getting more intrusive: "Online marketers are increasingly seeking to track users offline, as well, by collecting data about people's offline habits—such as recent purchases, where you live, how many kids you have, and what kind of car you drive."

Angwin goes on to explain how it works: after sharing your e-mail address with a store, a marketer locates customers online when they use their email addresses to log into websites, then a marketer tags customers' computers with a tracker, and then when customers arrive at the website of the same story they will see a site customized to them.

Several U.S. Supreme Court justices appear to be open to putting limits on police officers searching cellphones, Politico reports. Oral argument were heard in two criminal cases today involving warrantless searches of smartphones: "The arguments in both cases centered around whether cellphones and personal technology have created a fundamentally different world for police, and whether that means that warrants should be required for all searches of electronic devices," Politico further reports.
 

The Foreign Intelligence Surveillance Court rejected the request of governmental lawyers to hold telephone metadata beyond the current five-year limit, Computer World reports. The Department of Justice had reasoned the evidence would need to be preserved for privacy civil lawsuits challenging the constitutionality of the surveillance of phone calls. The court reasoned: "The government can be sanctioned for destruction of evidence only if it is established that it had an obligation to preserve it at the time it was destroyed, that the records were destroyed 'with a culpable state of mind,' and the destroyed evidence was relevant to the party's claim or defense," Computer World also reports.

The Connecticut General Assembly is considering a bill called the "look, listen but don't copy law," which would allow public access to homicide photos and 911 tapes to review them but not necessarily to get copies of them, the Connecticut Post reports. Family members of crime victims could cite an unwarranted invasion on their public privacy to block release of the records, then putting the onus on the public to show that there actually is no invasion, the Post reports.

The U.S. Supreme Court granted certiorari in two cases on whether police making an arrest must get a warrant before searching a suspect's mobile phone, Bloomberg reports. "More than 90 percent of American adults own mobile phones, giving the cases broad practical significance. The outcome also may hint at how the justices would view the National Security Agency’s telephone-data program, an issue likely bound for the high court," Bloomberg further writes.

President Obama finally weighed in on where the line should be drawn between surveillance and privacy in a speech today. The New York Times reports: the president "will require intelligence agencies to obtain permission from a secret court before tapping into a vast storehouse of telephone data, and will ultimately move that data out of the hands of the government."

The president also said surveillance of foreign leaders will be curtailed.

The president also suggested the creation of a "panel of advocates on privacy and technology issues who would appear before the Foreign Intelligence Surveillance court." The Times reports that the advocates would only appear in novel cases, but it's unclear who would decide which cases are novel.