Bridge Span 17-7: The False Choice of Security and Privacy

Discussions about personal privacy and government surveillance commonly end in a false choice.
Often someone offers that the government can watch them all they want and gather all the information the government may desire, because the person proudly asserts that they have no reason to be worried as they are not criminals and have done nothing wrong. Or they argue, that since government collects so much data about people already what’s a little bit more? To say that these responses miss the point is an understatement and leaves one to wonder if the commentator would be so cavalier about protections U.S. citizens enjoy in which they interested in partaking. Even a casual observer should understand that a constitutional protection checking government’s power, the search warrant, does not deserve to be dismissed so lightly. Our guaranteed protections can allow us to be secure and have our privacy.
This flippancy about our rights will face a very real challenge as the Supreme Court has agreed to decide exactly how much privacy Americans are afforded where mobile phone tracking data is concerned. The question is simple, should a search warrant be required before the government can demand information from mobile phone companies to determine the user’s past locations? The fundamental question is how easy should it be for government to collect data, and specifically location data, about us?
Location data can reveal a great deal about someone especially as smartphones are often tracking our whereabouts without our knowledge. Lower courts have said that a warrant is not required because the information is “voluntarily” shared by users with third parties, such as telephone companies or app providers. But a phone’s location can be revealed because a network identifies a mobile phone location when a call is made to the phone even if the call is not answered. Just because someone has phone is no indication they want their location known. The citizen’s choice then is to surrender their security to gain their privacy. The future will be more challenging. As technology advances, smaller cell sites are becoming more prevalent, and with smaller cell sites typically comes a small range, a more precise location generally measured in feet instead of miles.
The reality of digital age life makes the notion of voluntary sharing of information outdated. Taken together, the amount of information being provided and the ever-increasing precision of the exact location, we must come to understand that this is not part of some routine investigation and gathering of general information. Simply said, the use of a mobile device is completely different than dialing from the corner payphone forty years ago.
Having this much data about a person is in effect a search. The public already understands the difference. As found by the Harris Interactive poll, 77 percent of phone users did not want to share their location data with app users. This is personal information, and a warrant should be required.
The argument is not that this information should be locked away under all circumstances. Rather, as is normal and expected, the government should be required to show they have reason to believe, probable cause to believe, a crime was or is being committed. Should our digital records not have the same protections we afford their analog cousins? In fact, digital records, given their very nature of abundance, detail and automation should likely be afforded more protection that records from the past.
While Congress has yet to step in to clarify the laws, the state legislatures and lower courts have been busy with seven states already requiring a warrant for all location information, and several other states protecting some location information. But those state laws could be in jeopardy depending on how the Supreme Court rules.
Continuing to dilute our protections from a potentially abusive government is untenable. Do we really want people to have to choose between protecting their guaranteed privacy and ensuring their safety?

The answer is simple, government should not be able to do as it pleases without restraint, with checks and balances on its power. Let’s all hope the Supreme Court agrees.

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