Updated: November 16, 2011 9:22AM
Privacy laws in the United States need an upgrade. Rapid advances in cell phones and computers are outstripping the ability of old laws to protect our personal lives.
This week, the U.S. Supreme Court declined to decide whether police need a search warrant before they look at text messages and other information on cell phones of people they have arrested or detained.
That’s unfortunate. This is an area of the law that needs careful re-examination, and it needs to be done on the national level because we carry our phones with us from state to state.
Cell phones, along with laptops and tablet computers, can contain our life stories. Someone with your cellphone can read your past text messages, no matter how personal the content is. The phone can reveal whom you have called, who your contacts are, what your finances are like, what’s on your personal calendar, photos of your friends and all of your recent email and voice mail.
That’s information many of us would be less than eager to place in the hands of authorities — or any other strangers.
The case the Supreme Court declined to take came out of California, where police found incriminating evidence in a text message after they searched the phone of a man suspected of taking part in a drug deal. The California Supreme Court applied a rule that allows police without a warrant to examine items found on a person who is detained or arrested.
That rule works for a pack of cigarettes. But not for a smartphone. As dissenting Justice Kathryn Werdegar wrote, “The majority’s holding . . . [gives] police carte blanche . . . to rummage at leisure through the wealth of personal and business information that can be carried on a mobile phone or handheld computer.”
Prompt, warrantless searches do have a proper place in the law. Police need them to make sure detainees aren’t carrying weapons or destroying evidence.
But expanding that law to include mass-storage devices opens the door to troubling scenarios. Should someone stopped for a traffic violation be open to prosecution because police learn music on that person’s phone violates copyright law? Should police who are curious about what might be on a mass-storage device be permitted to follow the owner until he or she commits some kind of minor infraction and then move in and seize the device?
Mark Rasch, a former prosecutor in the Justice Department’s computer crime unit, points out these questions will only gain in significance as the world moves to cloud computing, in which personal data can be accessed from anywhere because it is stored on remote servers instead of in a particular device.
“When I get stopped in the Loop and they seize my phone, they are going to be able to search my [home] computer in Wisconsin,” Rasch said. “They are entering my house, opening the computer and searching the contents.”
The Supreme Court needs to step in and resolve this issue.