Digital vs. Analog Privacy

Why your smartphone is not a house

In the legal battle between the FBI and Apple, supporters of the FBI keep comparing a smartphone to a home or a safe. At first glance, these analogs make sense. They are private, secured spaces that are legally accessible with a warrant. Why then, should a cell phone not be the same?

This Week in Tech Episode 552 contains a very interesting discussion on this topic. Of particular interest is the discussion of what portions of a suspect’s life are not subject to search with a warrant. The immediate answer was “their brain,” followed by spousal privilege. Both of these relied on the right not to incriminate oneself.

Then, the discussion turned to a future scenario in which accurate mind reading is possible. If the suspect’s mind can be read as easily as a fingerprint, does the right not to incriminate oneself still mean anything?

It occurred to me in listening to this discussion that there is a principle that has gone unaddressed in the larger dialog to date: who created the data on our computers. Before computers, people chose what to write down or bring into their homes. If they didn’t want anything incriminating in their home, they could (theoretically) make sure that it didn’t get there. Documents could be burned or never even written. Evidence could be flushed or dumped. A search of a home turned up things that the occupants chose to have there.

Computers change the situation drastically from a privacy standpoint. They retain data by default. As you used the web to find and read this article you created a data trail spread across multiple machines. Did you mean to have your activity captured in your ISP’s logs? On Medium’s servers? On your own device? If you did not mean to do that, can you stop it from happening next time?

One privacy maxim I’ve been quoting for decades is “don’t put anything on the internet that you wouldn’t want grandma to see.” This assumes, of course, that everything being put on the internet by your device(s) was your choice. That is simply not the case any more.

Smartphones maintain huge amounts of data about their users with little-to-no user control. Where they went, who they spoke to, what they read and watched are all observed and recorded.

Compare this with the amount of information that would be available about the average person in 1986. The only records about them would be those they kept themselves or those maintained about them by others, usually businesses. Communications could only be accessed after a warrant was issued, so those made before the warrant would be completely lost because they were not routinely stored.

After reflecting on the situation just thirty years ago, it becomes clear that computers allow others to look into our past in an unprecedented manner. A smartphone is less equivalent to a house than to a combination tracking device/wiretap/spy camera. It records and it remembers. The user does not have much of a choice.

Yesterday, President Obama said, “If in fact you can’t crack that all, if the government can’t get in, then everybody is walking around with a Swiss Bank account in their pocket.” The president has it exactly backwards. An uncrackable smartphone provides the exact same level of privacy as no smartphone at all.

When government can crack smartphones, it has placed a surveillance device in our pockets without probable cause. While a warrant may be needed to get the data, the spying is taking place before probable cause is ever established.

For privacy to mean anything at all, people must be allowed to keep their computers secure, even against the government.

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