The Right to Privacy in a Digital World

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We live in a digital age.  As technology advances, the law has struggled to keep up, which has created tension between law enforcement’s needs to investigate crimes and individuals’ constitutionally protected rights to privacy.  One area where such tension continuously arises is with respect to law enforcement efforts to access information contained on cell phones.

The United States Supreme Court recently addressed some of these issues in Carpenter v. United States. In that case, law enforcement obtained data called “cell-site location information” (CSLI) that was related to Carpenter’s cell phone. CSLI is data that is collected by cell phone carriers each time a call is placed or received, which, among other things, tracks the cell tower that the phone connects to during the call. Using this information, law enforcement was able to track Mr. Carpenter’s movements over a span of several months, ultimately using this location information to bolster their argument that Mr. Carpenter was involved in a number of robberies.

The Court ruled that law enforcement violated Carpenter’s 4th Amendment expectation of privacy when it used the CSLI data to track his location over a span of 127 days. The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”  The purpose of the 4th Amendment “is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials.”  In reaching its decision, the Court stated that CSLI data provides an intimate window into a person’s life, revealing not only his particular movements, but through them his “familial, political, professional, religious, and sexual associations.” These location records “hold for many Americans the privacies of life.”  The Court went on to conclude that law enforcement must obtain a court ordered search warrant to obtain a person’s CSLI data.

Another hotly contested digital privacy issue relates to law enforcement efforts to force individuals to provide passwords or codes that will allow them to unlock an individual’s mobile device.  The Florida Court of Appeals recently addressed this issue in G.A.Q.L. v. State.  There, the Court ruled that forcing a person to provide his cell phone password or code violates the protections provided by the 5th Amendment, which prohibits the government from compelling an individual in a criminal case to be a witness against himself. In reaching this conclusion, the Court noted that law enforcement did not seek the passcode itself, but rather the communications that the use of the passcode would reveal. Forcing a person to provide such information turns that person into a witness against himself, therefore violating the 5th Amendment.

Going a step beyond passwords and codes, some courts have addressed the issue of whether an individual can be forced to provide a biometric unlock method, such as a fingerprint.  Courts have come to mixed conclusions on this issue.

For example, in State v. Diamond the Minnesota Supreme Court recently ruled that forcing a person to provide a fingerprint to unlock a cell phone did not violate the Fifth Amendment privilege against self-incrimination. In Diamond, the defendant was ordered to use his fingerprint to unlock his cellphone or face civil and criminal contempt. Evidence located during the subsequent search of the cell phone was presented to the jury during Diamond’s trial. In its decision allowing the forced unlocking of the phone, the Court opined that law enforcement sought Diamond’s fingerprint for its physical characteristics and not for any implicit communicative testimony inherent in the fingerprint. Further, the Court ruled that requiring the fingerprint production did not constitute being a witness against oneself because providing the fingerprint did not reveal the contents of Diamond’s mind.

The US District Court for the Northern District of California came to the opposite conclusion, however. In In re the Matter of the Search of a Residence in Oakland, California, law enforcement sought a search warrant for a residence and the authority to compel any person present at the time of the search to provide any biometric features necessary to unlock any digital devices located during the search. The Court concluded that law enforcement could not force individuals to provide biometric features to unlock their cell phones. In doing so, it recognized that courts have an obligation to safeguard constitutional rights and cannot allow those rights to be diminished merely due to advancements in technology. The Court then observed that biometric features serve the same function as passcodes, which a person cannot be compelled to provide. In other words, because passcodes and biometric features are functionally equivalent, the Court ruled that if a person cannot be compelled to provide a passcode, then it is equally true that a person cannot be compelled to provide a biometric unlock feature. The Court further ruled that use of a biometric unlock feature constitutes potentially self-incriminating testimony, in that by using the fingerprint to unlock the phone the person is, “testifying that he or she has accessed the phone before, at a minimum, to set up the fingerprint capabilities and that he or she currently has some level of control over or significant connection to the phone and its contents.”

As technology continues to develop, conflicts such as these are sure to continue to arise.  Individuals who find themselves in a situation where law enforcement is seeking production of their digital devices and/or data should contact an experienced criminal defense attorney to gain a full understanding of their constitutional rights.

This article was authored through the collaborative efforts of Eric R. Pangburn and other legal professionals at West & Dunn, a law firm dedicated to providing high-quality legal services to individuals and businesses, with a particular focus on assisting veterans of the United States Armed Forces.

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