Digital Privacy Is Fundamentally Different From Physical Privacy


Tim Lee argues—or perhaps merely hopes—that yesterday’s decision protecting cell phones from warrantless searches might signal a turning point for the Supreme Court’s attitude toward digital information in general:

The government has typically pursued a simple legal strategy when faced with digital technologies. First, find a precedent that gave the government access to information in the physical world. Second, argue that the same principle should apply in the digital world, ignoring the fact that this will vastly expand the government’s snooping power while eroding Americans’ privacy.

….The government hoped the Supreme Court would take this same narrow, formalistic approach in this week’s cell phone privacy case. It wanted the justices to pretend that rifling through the vast quantity of personal information on a suspect’s cell phone is no different from inspecting other objects that happen to be in suspects’ pockets. But the Supreme Court didn’t buy it.

….The Supreme Court clearly recognizes that in the transition from information stored on paper to information stored in computer chips, differences of degree can become differences of kind. If the police get access to one letter or photograph you happen to have in your pocket, that might not be a great privacy invasion. If the police get access to every email you’ve received and every photograph you’ve taken in the last two years, that’s a huge invasion of privacy.

This is a problem that’s been getting more acute for years. The basic question is whether courts should recognize the fact that digital access to information removes practical barriers that are important for privacy. For example, the state of California keeps lots of records about me that are legally public: DMV records, property records, birth and marriage records, etc. In the past, practically speaking, the mere fact that they were physical records provided me with a degree of privacy. It took a lot of time and money to dig through them all, and this meant that neither the government nor a private citizen would do it except in rare and urgent cases.

In the digital world, that all changes. If a police officer has even a hint of curiosity about me, it takes only seconds to compile all this information and more. In a technical sense, they don’t have access to anything they didn’t before, but in a practical sense I’ve lost a vast amount of privacy.

In the past, the Supreme Court has rarely (never?) acknowledged this. In yesterday’s cell phone case, they not only acknowledged it, they acknowledged it unanimously. Is it possible that this means they’ll be applying a more skeptical view to similar cases in the future? Or even revisiting some of their past decisions in light of the continuing march of technology? We don’t know yet, but it’s certainly possible. Maybe the Supreme Court has finally entered the 21st century.

THE BIG PICTURE

You expect the big picture, and it's our job at Mother Jones to give it to you. And right now, so many of the troubles we face are the making not of a virus, but of the quest for profit, political or economic (and not just from the man in the White House who could have offered leadership and comfort but instead gave us bleach).

In "News Is Just Like Waste Management," we unpack what the coronavirus crisis has meant for journalism, including Mother Jones’, and how we can rise to the challenge. If you're able to, this is a critical moment to support our nonprofit journalism with a donation: We've scoured our budget and made the cuts we can without impairing our mission, and we hope to raise $400,000 from our community of online readers to help keep our big reporting projects going because this extraordinary pandemic-plus-election year is no time to pull back.

THE BIG PICTURE

You expect the big picture, and it's our job at Mother Jones to give it to you. And right now, so many of the troubles we face are the making not of a virus, but of the quest for profit, political or economic (and not just from the man in the White House who could have offered leadership and comfort but instead gave us bleach).

In "News Is Just Like Waste Management," we unpack what the coronavirus crisis has meant for journalism, including Mother Jones’, and how we can rise to the challenge. If you're able to, this is a critical moment to support our nonprofit journalism with a donation: We've scoured our budget and made the cuts we can without impairing our mission, and we hope to raise $400,000 from our community of online readers to help keep our big reporting projects going because this extraordinary pandemic-plus-election year is no time to pull back.

We Recommend

Latest

Sign up for our newsletters

Subscribe and we'll send Mother Jones straight to your inbox.

Get our award-winning magazine

Save big on a full year of investigations, ideas, and insights.

Subscribe

Support our journalism

Help Mother Jones' reporters dig deep with a tax-deductible donation.

Donate

We have a new comment system! We are now using Coral, from Vox Media, for comments on all new articles. We'd love your feedback.