April 01, 2014

The New Parole Ankle Bracelet: Your Smartphone

We have voluntarily surrendered the very privacy that we lament the government is “stealing”—simply by carrying a smartphone.

Download a printable PDF of this article (membership required).

We are currently engaged in a society-wide, indeed a global, discussion about the proper limits of government surveillance. That discussion has been catalyzed by accusations and revelations that the National Security Agency (NSA) routinely tracks and spies on citizens and individuals abroad. Yet, we tend to lose sight of how we have voluntarily surrendered the very privacy that we lament the government is “stealing” simply by carrying our ubiquitous smartphones in our purses, pockets, and briefcases. Make no mistake, the smartphone and its larger cousin, the tablet, are incredibly powerful sources of information that can be used either for or against your next client. What smartphone use and etiquette should you discuss with your client when he or she first comes in to talk about that intellectual property dispute, business breakup, or employment case? Will you be able to obtain any useful information from the opponent’s phone? How can you effectively use smartphone data at trial? Before you even get to these questions, you need to know the lay of the land. Here you will find the current state of the laws applicable to your smartphone.

Smartphones are marketed as the most powerful personal devices the world has ever seen, but at the same time, they are more intrusive than a Soviet dissident’s worst nightmare. A smartphone stores personal information, takes pictures, transmits locations, and can even, with the right software, send all this data to a third party other than the government. (Read “your soon-to-be ex.”) (The NSA’s current capabilities are outside the scope of this article, in large part because the applications, or apps, you installed on your phone perform the NSA’s work for it.)

Smartphones are now replacing, if they haven’t already, digital cameras, camcorders, landline telephones, televisions, navigation systems, MP3 players, books, newspapers, wristwatches, and computers. People keep their smartphones within arm’s reach all day long, use them to communicate and interact with the world, and store so much personal information in them that they are far more revealing than a teenager’s diary. Smartphones have also transformed the way we communicate. Have you noticed how millennials don’t answer cell phones or listen to voice-mail messages, but they do respond to every text message within minutes?

Premium Content For:
  • Litigation Section
Join - Now