It used to be that privacy was easy. All your personal stuff was at home or in your office and you only carried around a license, some credit cards, and that letter to Aunt Edna you’d been meaning to mail. If the police wanted to see your private papers, they had to get a warrant.
Now, of course, none of this is true. Just about everyone has a cellphone and on that device is an enormous amount of information that is private. All your friends, where you have physically been tracked moment by moment, your email, and, of course, your pictures. What isn’t on your phone lives in the cloud in the hands of people you don’t know in locations you can’t predict.
This rapid change has created huge problems for the law. When do the police need warrants to search cellphones or get records from third parties? What are the rules about collecting and consolidating information about you? Can you ever get that arrest for vomiting on the campus police officer when you were a freshman scrubbed from search results?
Not surprisingly, the new laws and new court rulings are all over the place. For example, a judge recently decided that the police can’t force a person to unlock your phone with your finger or face even if they get a warrant — because it would violate that person’s rights against self-incrimination (other judges have found differently). The Supreme Court has decided that, at least in certain situations, the police need a warrant to get private information about individuals from third parties. Various states are busy passing data privacy laws that vary widely in approach.
In short, it’s a mess. Both courts and legislatures are pretty miserable in the face of rapid change. This is made even worse since many of the judges and lawmakers are pretty long in the fang. One justice of our own Supreme Judicial Court still thinks she needs to drop a footnote to explain what an iPhone is. So the very people making these decisions are often the least equipped to really understand what is going on.
But this is important stuff. Unless we want to just give up on privacy altogether, there is a need for rules and laws that bear some relationship to real life. I don’t mean to complain, but I have gotten so many letters telling me my data was subject to a potential security breach, I will have free credit monitoring until long after my funeral and that just doesn’t seem to be enough.
So everyone needs to pay attention. Privacy isn’t just someone else’s problem.
Evan Slavitt is a Massachusetts trial lawyer who writes on legal affairs for the Herald.