(Every Tuesday, Kyle St. Romain will talk about the business and legal side of the app world. While his opinions don’t always reflect those of Rocksauce Studios, you should hear him out…the guy knows his stuff!)
So what about your rights? Surely these law enforcement agencies need a warrant, signed by a judge to get this information. Right? Apparently judges are upholding law enforcement agencies’ requests for this kind of information, making these requests technically lawful. That said, the laws governing the collection, use, and release of mobile data is still pretty new. Mobile privacy laws are especially frustrated when you consider there are roughly 51 different jurisdictions all trying to decide what’s legal. Law enforcement agencies are using this confusion to their advantage, and the only thing we know for sure is that cell phone carriers are a treasure trove of personal information. It’s actually pretty scary when you think about it.
Without a clear federal directive on how to protect mobile privacy, we are left with the outdated framework of the expectation of privacy test. The expectation of privacy test finds its roots in a Katz v. U.S., 389 U.S. 347 (1967), a 1967 Supreme Court Decision based on the Fourth Amendment. Basically, Katz held that law enforcement officials needed a warrant in order to eavesdrop on a phone call, since Katz expected his phone calls would be private and society agreed with him. The court held that the expectation of privacy test isn’t about the place; it’s about the person. Thus, there needn’t be a physical intrusion of the phone booth Katz occupied, just that the police breached his expectation of privacy – in this case, through the use of a bug.
From Katz, we can glean that the expectation of privacy test is twofold: 1) there is a subjective, individual expectation of privacy; 2) that must be be reasonable. Thus, the expectation of privacy is another one of those balancing tests so dearly loved by the law. While we expect a certain level of personal privacy, the government has a legitimate interest in public safety; it’s the ratio of personal rights: public safety courts will consider when determining whether your Fourth Amendment rights have been violated.
Unfortunately, the expectation of privacy argument can be compellingly argued both ways when it comes to mobile privacy. Both sides have legitimate points, and both sides are correct. It depends on your personal beliefs and who you are talking with.
If you want to read more, check out Bruce Schneier’s article called It’s Time to Drop the Expectation of Privacy Test. It’s a solid read from the folks over at Wired. Until next time, remember: casual lunch meetings are still the best way to convey sensitive information. Stay off the phone and avoid email, please. You’ll thank yourself later.