In the wake of the NSA scandal, American citizens demand Congress take a hard look at government surveillance practices. While only the federal government has the power to halt NSA activities, the states will likely be the real battleground for privacy issues. In fact, state legislators are actively moving legislation aimed at protecting citizens' civil liberties in the digital age.
Digitally connected devices are an integral part of Americans' daily lives. More than 90 percent of Americans deem essential one device in particular: the smartphone. For many, the buzz of a smartphone alarm is the first thing heard each morning, and the hum of a phone powering off is the last thing heard each night. Every day, people use mobile devices to exchange text and voice messages, check emails, take photos, browse the web and update Facebook accounts. Advanced geolocation services mean our mobile devices now reveal where we have been, where we are and where we plan to go.
For all its utility, the ubiquitous and indispensable smartphone's wealth of confidential information exposes users to privacy risks. A recent Pew poll reports a majority of Americans believe their civil liberties are in danger — and when it comes to how much access law enforcement has to a person's cell phone—they certainly are. Only four states currently have laws addressing how much access law enforcement should have to smartphone data without obtaining a search warrant.
Warrants should protect individuals' Fourth Amendment right to privacy, but today's technology has far outpaced this legal protection. For decades, the law has held that although a warrant is needed to search a building, law enforcement can freely search items on an arrestee's body. This distinction — delineated in the 1973 court case United States v. Robinson — no longer makes sense when the average smartphone holds more data than an entire warehouse.
Until a firm precedent is set regarding the search and seizure of cellular devices, Americans will remain vulnerable to law enforcement perusing intimate details of their lives — without a warrant or even probable cause. Courts have grappled with how much leniency to afford law enforcement in inconsistent attempts to set the standard for accessing cell phone data.
In United States v. Wurie, the First Circuit Court of Appeals, which includes New Hampshire, recently ruled that searching a cell phone without a warrant is not constitutional; however, courts in the past have ruled differently. For example, the Southern District Court of Kansas ruled in 2008 that citizens lack a "reasonable expectation of privacy" regarding call records and address books. Even the U.S. Supreme Court sidestepped answering whether searching cell phone data without a warrant violates the Fourth Amendment. Instead, in City of Ontario (California) v. Quon, the court ruled on narrower grounds, kicking the legal question back to the lower courts.
Supreme Court rulings this summer may lend more clarity to this dilemma. But, with a daily drumbeat of news stories about law enforcement and governments' use of data — and regular reports of the private sector abusing personal information — privacy concerns aren't going away anytime soon. State policymakers must be a guiding voice in the fight to protect citizens' privacy, and safeguarding the mobile devices that have become portals to our personal lives is a good place to start.
To this end, states should follow the lead of those like New Hampshire. The New Hampshire Legislature plans to take the reins on the Fourth Amendment issue and consider legislation that would ensure no information contained within a portable electronic device would be subject to warrantless search and seizure.
Americans should not have to lower their privacy expectations in the digital age. A groundswell of opposition to collection and use of personal data resulted after the NSA revelations. Yet, the type of data collected by the NSA is trivial when compared with the personalized data stored on our mobile devices; a look through our smartphones indicates much more than our call logs or data mined from mobile apps. A host of privacy challenges are on the horizon, but safeguarding Americans' cellular devices from unwarranted searches should be an area for both sides of the aisle to seek cooperative solutions. While the federal government continues to delay, it is time for state policymakers to move on protecting citizens' privacy.
Alex Rued is a legislative analyst on the American Legislative Exchange Council Task Force on Communications and Technology.