Overall, technology has been in the privacy spotlight in 2012. Everything from tweets to Facebook pages came up in the news, bringing social media and our digital identities into sharp focus. But social media isn't the only place technology has run into the legal process.
Privacy issues have crept up because someone else was on an open WiFi connection besides the subscriber. Identity thieves have known this is a great way to steal someone's personal information for some time, but there aren't any laws saying you have to secure your WiFi network – it's just a really great idea. Besides, there are other reasons you might want to do so… keeping the neighbor kid from logging in and making threats toward police, for example. That can end up rather badly for your front door.
Cell phones and GPS usage have come up a couple of times, as well. Early in the year, the New York Times ran an exposé claiming police were using information from cell phones to track suspects. Rep. Ed Markey made an official inquiry into the claim, and was taken aback by how "massive" this practice actually is. Subsequent legislation Markey introduced failed to address the issue, but the fact that it has come to the attention of Congress is heartening, even if nothing is immediately done. The Federal government is usually slow to respond anyway. Besides, when legislation is passed, it would be a huge benefit to everyone involved if it were thorough enough to cover most issues – and that needs to be given more than passing consideration and planning.
In the mean time, the US Supreme Court weighed in (United States v. Jones on the subject of GPS, saying that attaching a GPS device to someone's car needs a warrant. However, since the GPS on your phone isn't something that needs to be "attached", it may squeak past that ruling – and so far it seems that when it has been called into question, it has. In fact, toward the end of the year, the US Sixth Circuit Court of Appeals ruled specifically that law enforcement does not need a warrant to track cell phone GPS information (although one judge's partially-dissenting opinion was that the ruling seemed to rely on an assumption that the defendant's cell phone was, itself, suspicious or somehow illicit.)
However, this ruling may run afoul of proposed legislation in the US Senate. Senator Al Franken brought the Location Privacy Protection Act (S. 1223) would require companies to get approval from a user before collecting GPS information. Admittedly, this would only require a one-time authorization for all future GPS data collection, but at least it would notify a user before information was collected. The bill has provisions to exempt law enforcement activities, naturally.
This is very similar to Markey's bill, however S. 1223 also includes guidelines for tracking interstate stalkers and violence against women initiatives. And neither bill seems to take into consideration that GPS information being used by law enforcement does not come from a third-party program installed on the cell phone, it comes directly from the cell phone provider themselves.
In this digital age, cell phones actually communicate with cell phone towers in similar ways to our laptops, iPads, etc. For example, when someone sends me a text message, Verizon stores the message while it looks for my cell phone, so it can deliver the message. It checks to see what tower my phone is connected to, checking the last tower it heard from my phone on first. If it doesn't find my phone there, it checks the next closest towers around the last one it heard from me on, etc. When it finds my phone, it sends the text message through. This process is standardized, it's part of how a cell phone works these days. So my phone company doesn't need a third-party application installed on my phone, they already know where I'm hanging out – and this is the information that law enforcement has primarily been monitoring.
And while we're looking at how the phone company gets that message to me in the first place, let's not forget that the Major Cities Police Association along with several other law enforcement associations, are asking that when Verizon (or any other cell phone company) stores my messages, that it keep them for a minimum of two years in case they want to search it later for evidence against me in criminal proceedings. Cell phone providers have not taken the privacy protection postures we have seen with Twitter or Instagram.
So while digital privacy seems to be in a state of flux, we can at least be assured that the subject is being discussed in the halls of those who make the laws as well as those who enforce them. Things are sure to be ironed out eventually.