A few months back I wrote a piece on how the Supreme Court is scared of technology. Much of it was based on comments from Justice Elena Kagan – “The justices are not necessarily the most technologically sophisticated people” – Justice Antonin Scalia (who said other government branches were better equipped to grapple with privacy and security protections) and a fairly goofy exchange between Chief Justice John Roberts, a lawyer and Scalia.
In light of Wednesday’s shockingly unanimous decision in Riley v California, it is clear that the justices do, in fact, have a sense of the technology involved.
That’s a huge deal. As IAPP Westin Research Fellow Dennis Holmes pointed out, “The court’s ruling in Riley signals an important shift in the notion of privacy as it relates to digital information.”
The New York Times’ Farhad Manjoo wrote that both decisions this week (the other denying Aereo the right to rebroadcast network television) “were both wins for industry, because they revealed something that should be quite gratifying to every technologist: The Supreme Court understands technology.”
The decision, Manjoo writes, “reveals a deep technological savvy.” Cellphones contain an enormous amount of rich personal data. As Roberts pointed out in the decision, “The sum of an individual’s private life can be reconstructed through a thousand photographs labeled with dates, locations and descriptions; the same cannot be said of a photograph or two of loved ones tucked into a wallet.”
The court even suggested – in countering arguments from law enforcement – that police have technical means to protect a suspect’s phone from being remotely wiped clean of criminal data.
More deeply, Tim Edgar notes in a Re/Code post that the Supreme Court even understands the value of encryption. He adds,
Importantly for digital privacy and security companies, the Supreme Court had no time for the government’s complaints that common security features — like encryption — justified dispensing with Constitutional protections. It is clear that the justices saw encryption correctly, as an ordinary and prudent privacy protection, not as some exotic feature designed to thwart the needs of law enforcement.
However, not all courts see it that way. As we reported, the Massachusetts Supreme Judicial Court decided a suspect can be compelled to disclose his encryption keys without violating the Fifth Amendment.
But the high court ruling is a great sign for the privacy world.
Communications technology is no longer new, or exotic and the price for using basic information services — or using common-sense security measures like encryption — should not be giving up your basic rights. Perhaps the most maddening notion out there is that privacy intrusions are our fault, for using entirely commonplace technology.
As Edgar exclaims, “The Supreme Court gets it,” and with that, “We need rules to protect privacy in today’s world.” And, he points out, he has a vested interest in this as an advisor to an encrypted e-mail service. The rules may be some time coming, The Hill reports Rep. Zoe Lofgren (D-CA) admitted that Congress has “no appetite” for consumer privacy legislation at this point … but it does have motivation to reform government surveillance.
True, this case revolves around criminal activity and the Fourth Amendment, but if the Supreme Court gets the value of digital data protection – all the way down to the value of encryption – businesses and organizations of all shapes and sizes need to understand that value as well. This is yet another tool in the kit for privacy pros trying to spread the word of privacy’s value throughout their organizations.
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