Privacy in the Digital Age

From photos labeled with dates, descriptions, and GPS coordinates to banking information and attorney-client communications, our gadgets increasingly carry the contents of our lives. And unlike physical containers, smart devices offer access to unprecedented troves of information, storage wells so vast that when law enforcement rummages through them, the intrusion into personal privacy may be substantial. As the U.S. Supreme Court recognized in Riley v. California in 2014, allowing police to scrutinize digital records “is quite different from allowing them to search a personal item or two.”

The Riley Court unanimously rejected warrantless cell phone searches incident to arrest, noting that although technology allows persons to carry millions of files in hand, it “does not make the information any less worthy of the protection for which the Founders fought.” But since that decision and other touchstone digital privacy rulings by the high court, the law continues to wrestle with the extent to which electronic devices should receive special protections under the Constitution.

Defining the Scope of Digital Searches

In Alasaad v. Nielsen, the U.S. District Court for the District of Massachusetts ruled that citizens’ Fourth Amendment guarantee against unreasonable search and seizure mandates that federal border agents harbor a reasonable suspicion of criminal behavior before searching smartphones and computers. However, the court declined to require that agents have probable cause and secure warrants to conduct searches, a higher standard advocated by the plaintiffs’ lawyers at the American Civil Liberties Union and Electronic Frontier Foundation. The court also stopped short of ordering the government to erase data it had obtained from the plaintiffs’ devices.

A few states away, in another battle over privacy rights, a divided Pennsylvania Supreme Court in Commonwealth v. Davis ruled the Fifth Amendment protection against self-incrimination prohibits the state from ordering a suspect to disclose the passcode to a lawfully seized but encrypted computer. A 4–3 majority reasoned that the information that could be obtained by learning the passcode was not a “foregone conclusion,” constituting an exception to Davis’s Fifth Amendment privilege as the state had argued.

The decisions reflect growing tensions between the needs of law enforcement and citizens’ interests in keeping sensitive data confidential, according to ABA experts. But while the scales may have tipped toward the government prior to Riley and the advent of the smartphone, courts today tend to give deference to personal privacy rights when assessing what protections digital data is afforded.