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.

DOES IT FEEL LIKE POLITICS IS AT A BREAKING POINT?

Headshot of Editor in Chief of Mother Jones, Clara Jeffery

It sure feels that way to me, and here at Mother Jones, we’ve been thinking a lot about what journalism needs to do differently, and how we can have the biggest impact.

We kept coming back to one word: corruption. Democracy and the rule of law being undermined by those with wealth and power for their own gain. So we're launching an ambitious Mother Jones Corruption Project to do deep, time-intensive reporting on systemic corruption, and asking the MoJo community to help crowdfund it.

We aim to hire, build a team, and give them the time and space needed to understand how we got here and how we might get out. We want to dig into the forces and decisions that have allowed massive conflicts of interest, influence peddling, and win-at-all-costs politics to flourish.

It's unlike anything we've done, and we have seed funding to get started, but we're looking to raise $500,000 from readers by July when we'll be making key budgeting decisions—and the more resources we have by then, the deeper we can dig. If our plan sounds good to you, please help kickstart it with a tax-deductible donation today.

Thanks for reading—whether or not you can pitch in today, or ever, I'm glad you're with us.

Signed by Clara Jeffery

Clara Jeffery, Editor-in-Chief

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

Share your feedback: We’re planning to launch a new version of the comments section. Help us test it.