Supreme Court’s cell phone decision in keeping with ‘digital privacy’ trends

You wouldn’t guess it based on its sharply divided decisions in the “Hobby Lobby” contraceptives coverage case or the Illinois public-employee fees ruling, but this U.S. Supreme Court has achieved consensus more than any other in recent history.

In fact, the Supreme Court term that ended June 30 featured 9-0 decisions in nearly two-thirds of orally argued cases. That’s the largest show of unanimity since 1940, according to experts who follow the court and its history.

One such example of consensus among the jurists who make up the nation’s highest court was the 9-0 ruling that police need warrants to search the cell phones of people they arrest. It’s a decision that is likely to apply to searches of tablets, laptops, and other connected devices, as well.

“Modern cell phones are not just another technological convenience,” Chief Justice John Roberts Jr. wrote for the court. “With all they contain and all they may reveal, they hold for many Americans ‘the privacies of life.’”

Americans have been skeptical of broad police searches since before the Revolutionary War, in part because British officers were fond of rummaging through homes in random searches for evidence of rebellious or criminal activity. The court reasoned that smartphones in 2014 are an extension of the home because they are mini-computers containing more data than entire houses once did.

The court’s decision was limited to police searches in connection with most arrests — it’s still legal to conduct a warrantless phone search in a true emergency — but it reflects a larger societal and business trend toward protecting digital privacy.

Facebook became somewhat infamous over time for its complicated privacy settings, which discouraged users from keeping personal information to themselves and their circle of friends. For much of its 10-year history, Facebook more or less compelled new users to default to settings that allowed information to be viewed widely across the Internet.

Today, Facebook appears to be turning a new page. Perhaps driven by competition from social media services that are more anonymous, Facebook announced in May that it would give a privacy checkup to its nearly 1.3 billion users. It has also explained to users that setting their privacy to “public” means anyone on the Internet can see their photos and messages. In June, Facebook also gave users the ability to review information that dictates how and when product advertising is pushed to them.



Of course, this is the same Facebook that took part in a recently published study that suggested social media can manipulate the emotions of users by tweaking what is allowed into those users’ news feeds. The 2012 study changed the news feeds of 689,000 people for a week without their consent, triggering an outcry from privacy advocates when it was published.

In Europe, where some court rulings have gone so far as to allow people to erase unflattering or even incriminating Web page links, Internet “cloud” companies are cashing in on consumer demand for greater privacy.

To lure customers, companies such as Finland-based F-Secure are pointing out that their data centers are located in the European Union, where privacy laws are more stringent than those in the United States. They’re trying to win market share from American companies, such as Amazon, Microsoft, and Google, which remain the gold standard for providing distributed storage and delivery of digital data.

As the Supreme Court noted in its 9-0 cell phone ruling, “Privacy comes at a cost.” The world already contains more connected devices — cell phones, tablets, computers, and more — than it does people. Those devices are producing and storing staggering amounts of data, much of which can be accessed by people other than those who created it.

It’s unrealistic to believe any law or cybersecurity measure will turn back the clock in an age of data analytics. It is realistic, however, to expect that individual liberties and protections that are a part of the American experience can and must co-exist in a digital age.

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