Two interesting privacy positions came out today, one from the Ohio Supreme Court and one from the Australian Ministry of Communication.
In the Ohio case, the Supreme Court ruled that the police need a warrant to search the contents of your phone. The case comes from a drug bust. From the available evidence, the guy was guilty as sin. Unfortunately, when the police arrested him, they confiscated and then, without either a warrant or his consent, searched the phone. The trial court allowed the evidence from the warrantless search citing a 2007 federal court decision that considered a cell phone similar to a “closed container”. (The closed container rule is what lets the police look in your pockets when they arrest you.) For physical items, the closed container rule makes some sense – you need to be sure your prisoner is not still in possession of something that could be used as a weapon. And if you happen to see other evidence while checking for physical threats, at least you had a reasonable justification to be looking.
Now, you could argue that a phone is an “information container”. The trial court did and an appeals court agreed. And so did three of the seven Ohio Supreme Court justices. But four of the justices were unable to make that stretch and I agree with them. A phone or a hard drive may be an information container but the information within it can’t be used as an immediate weapon to threaten the safety of the arresting officers. The justification for a warrantless search is missing. There is no immediacy. So does this mean we have to let drug dealers go free? No, it just means the police need to talk to a judge before they search the phone. They need a warrant, just like they do for almost all other searches. I think this ruling is in keeping with the privacy expectations of most of us.
There is one caveat in the Supreme Court’s ruling – they can search the content of your phone if they believe their safety is in danger. I am at a loss to think of a scenario where a phone would constitute a danger but expect some pretty specious arguments. Overall though, this was a clear win for privacy.
The story from Australia is a lot less promising. The Australian Communication Minister announced today that it will impose mandatory internet filtering to block “obscene and crime-related websites”. That content is already illegal from publication in Australia but they have no ability to control it when a citizen accesses the content from an overseas server.
If the filter is implemented, it would be the strictest among the world’s democracies. It would put Australia in the ranks with Burma, China, Iran, Syria and North Korea.1 Unfortunately, the Minister has also already conceded that the filter will be ineffective, despite the success of a recent technological test. Much of the information that he proposes to block is available via peer-to-peer and chat sites, neither of which would be affected by the domain name-based filters which are being proposed. The filters also inevitably block some proportion of legitimate content. The result would be a sweeping grant of power to create a secret blacklist to little or no obvious gain. Electronic Frontiers Australia, a privacy rights group, has challenged the government’s plans, saying “We’re yet to hear a sensible explanation of what this policy is for, who it will help, and why it is worth spending so much taxpayers’ money on.”
In both these cases, it’s easy to empathize with the “tough on crime” position. Drug dealers are evil and obscenity is bad. But the erosion of privacy and other personal liberties is far worse, no matter how well-intentioned. I am heartened that the Ohio Supreme Court found the right decision even though it took an ugly case to bring it to light. I hope that the Australians find their way as well.
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