Wednesday, June 25, 2014

Riley v California: support cloud privacy too?

Today, in Riley v California, SCOTUS struck down warrantless cellphone searches during arrest. However, I think more importantly, they are setting things for a future battle over cloud privacy. They could have decided the case on narrow grounds (such as in Alito's concurring opinion), but they chose instead broad grounds.

Today, the police can grab your old emails stored in the cloud. This is based on two existing decisions.

 In Smith v Maryland, SCOTUS said government can grab your phone records (who you dialed) without a warrant. The idea is the "third party doctrine", that you gave up your "reasonable expectation of privacy" when you gave the information to a third party.

In US v Miller, SCOTUS said the same thing about bank records. Old emails, stored on a server (rather than in transmit between two parties) are considered the same sort of "record". Other information in the cloud, such as your photos backed up on Apple, Google, or Amazon cloud, likewise are mere "business records". Storing things in the cloud forfeits Fourth Amendment rights.

Today's decision, Riley v California, gives a lot of ammunition to overturn these decisions with regard to cloud information. The court says the following on page 21:
Cell phone users often may not know whether particular information is stored on the device or in the cloud, and it generally makes little difference.
It's meant one way, to show how a search incident of an arrest doesn't automatically extend to servers in, say, Germany. But this is worded in a way that (one could argue) now goes the other way: the expectation of privacy for the device in their pocket extends to the data in the cloud.

On page 23 is an even better nugget for us privacy weenies:
The sources of potential pertinent information are virtually unlimited, so applying the Gant standard to cell phones would in effect give "police officers unbridled discretion to rummage at will among a person's private effects."
That is the entirety of the "cloud privacy" argument. Smith v Maryland was predicated on the idea that a pen register had limited utility to law enforcement. In today's "cloud", the opposite is true. All a person's effects are in the cloud, including not only data mentioned here (such as whether they were texting while driving), but personal correspondence, photos with EXIF location data, that novel they've been writing, their search history, and so on. The power of the government to rummage through a person's effects is unrivaled in history -- and is why searches of cloud information should not be allowed without a warrant.

On page 24, the court talks about Smith v Maryland, and how the call log on the phone differs from a pen register list of phone number's dialed:
call logs typically contain more than just phone numbers; they include any identifying information that an individual might add, such as the label "my house" in Wurie's case
This circumscribes Smith v Maryland to just phone numbers -- signaling it might not apply to more extensive information, like names associated with numbers.

On page 3, the court compares a modern cellphone to history objects that might be on a person:
Cell phones differ in both a quantitative and qualitative sense from other objects taht might be carried on an arrestee's person. Notably, modern cell phones have an immense storage capacity. Before cell phones, a search of a person was limited by physical realities and generally constituted only a narrow intrusion on privacy.
That, and the continuing discussion, applies equally to cloud data compared pen-register and bank records. Historically, they were limited and only constituted a narrow intrusion on privacy. Today, arbitrary police access of the cloud would represent a wide intrusion on privacy.

Further on page 3, SCOTUS says:
A decade ago officers might have occasionally stumbled across a highly personal item such as a diary, but today many of the more than 90% of American adults who own cell phones keep on their person a digital record of nearly every aspect of their lives.
...and by extension, the same argument applies to the cloud. American adults have a reasonable expectation of privacy over a digital record that covers 90% of their lives.

On page 25 is this wonderful statement:
We cannot deny that our decision today will have an impact on the ability of law enforcement to combat crime. ... Privacy comes at a cost. 
Part of the justification for the "third-party doctrine" is that technology allows criminals to move things around to whichever has the most protection. If warrants are required to search cellphones, then criminals will move information onto this safe haven. Therefore, the argument goes, we shouldn't give them safe havens. I think SCOTUS is arguing against this -- signaling that they don't mind making the police's job harder.

Many commentators have pointed out this statement:
That is like saying a ride on horseback is materially indistinguishable from a flight to the moon.
What SCOTUS is signaling here is that technology obsoletes previous decisions. In other words, modern cellphone records that the NSA has been monitoring may actually be substantially different than the pen register taps in Smith v Maryland.

And finally, damnit, SCOTUS said this:
Our cases have recognized that the Fourth Amendment was the founding generation's response to the reviled "general warrants" and "writs of assistance" of the colonial era, which allowed British officers to rummage through homes in an unrestrained search for evidence of criminal activity. Opposition to such searches was in fact one of the driving forces being the Revolution itself. In 1761, the patriot James Otis delivered a speech in Boston denouncing the use of writs of assistance. A young John Adams was there, and he would later write that "every man of a a crowed audience appeared to me to go away, as I did, ready to take arms against writs of assistance."
I'm not a lawyer, but a revolutionary. I don't care about precedent. I believe a Right to Cloud Privacy exists even if I believe that a logical adherence to precedent means that SCOTUS can't find such a right. That government can rummage through 90% of our personal effects in an unrestrained search for evidence of criminal activity is intolerable. I'm heartened by the fact that SCOTUS seems, actually, ready to agree with me.

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