I recently gave an interview with Forbes discussing the technical implications of a case recently heard by the Supreme Court about warrantless mobile phone searches. The technical reasons for not allowing this to go on are many, including the most severe penalty of potentially destroying evidence that you would otherwise need to prosecute a case (should the suspect be found to have committed a crime). There is a far more important dimension to this SCOTUS case, however; the ruling to come could potentially change the face of our constitutional rights as it pertains to data.
The Fourth Amendment guarantees our right to be secure in our persons, houses, papers, and effects from unreasonable search and seizure. Most Americans today recognize our cellphones (and the data that is on them) as a part of our papers and effects; a cellphone itself is a personal effect, in fact. Papers, as items containing information, are covered as well and easily apply to data (electronic paper). When we discuss warrantless cellphone searches, we’re actually talking about “seizure of data”; in fact there is a mobile forensics tool even called “Device Seizure”.
If the Supreme Court rules that “collection” of data from a mobile device does not qualify as “seizure”, or that collecting such data is not covered under the Fourth Amendment, this ruling could have severe implications for domestic surveillance. By ruling data out of the Fourth, domestic surveillance (such as that going on by the NSA) and other similar efforts to intercept data could not only be essentially legalized by SCOTUS, but could also further extend the government’s reach into our personal lives by giving the government the legal OK to proactively and invasively collect personal data directly from people’s laptops or mobile phones – without a warrant, and either on a whim or continuously on a broad scale. We have already learned that NSA has such capabilities, but what would happen if “data collection” was ruled legal and only required a warrant to look at the data?
This case, combined with the fact that SCOTUS doesn’t likely understand the technology here and what’s at risk, could potentially open a huge door for further and more invasive intrusion into people’s data (and personal lives) by the government. We already know that governments will go as far as they possibly can stretch the law. Watch this one closely; this case could potentially allow for the surveillance state of tomorrow.