Privacy SOS

The FBI says privacy is dangerous, but courts and state legislatures disagree

A couple of years ago the Department of Justice asserted in court that Americans have “no privacy interest” in information revealing our physical locations 24 hours a day, seven days a week. “No privacy interest” is a direct quote. The DOJ argued this because it wanted to protect the power of the FBI—and local law enforcement—to warrantlessly track the locations of our cell phones.

Judges across the country appear to disagree. Yesterday the state supreme court in Florida ruled that cops need a warrant to track cell phone location information, sometimes called “cell site location data.” The Florida high court joins Massachusetts’ and New Jersey’s in arriving at that conclusion, contra government lawyers. While exciting, yesterday’s ruling isn’t particularly surprising given that the 11th Circuit Court of Appeals, which includes Florida, reached the same decision in June 2014.

And it’s not just courts. As of April 2014 three states had passed laws requiring state and local law enforcement to obtain warrants before tracking cell phones. Fifteen other states, including Massachusetts, considered bills in the last session that would have done the same. The Massachusetts bill cleared the senate unanimously and died after house leadership failed to bring it to the floor for a vote. California’s state legislature passed a warrant requirement for location tracking this year; unfortunately, democrat Governor Jerry Brown vetoed it, likely at the request of law enforcement lobbying organizations.

Therefore when it asserted that we have “no privacy interest” in our cell site data, the DOJ was not only on the wrong side of an important debate about privacy in a democratic society. The nation’s top law enforcement agency was also on the wrong side of the courts, which up to and including the Supreme Court are generally moving in the direction of providing 20th century analogy privacy protections for 21st century digital life. And the lawyers at DOJ were on the wrong side of legislative bodies, which join courts nationwide in moving to apply the Fourth Amendment to not just our digital devices, but also the electronic trails they leave behind.

That’s the context in which FBI director James Comey this week issues hysterical claims about how iPhone encryption is plunging the bureau into darkness—a darkness that we are meant to believe will ensnare our children in pornography conspiracies, and hide terrorists, murderers, and rapists from justice. As usual, the nation's top spies are free to go around spewing this kind of incendiary nonsense—essentially equating a desire for privacy with criminality—without providing a shred of evidence that reasonable privacy and security measures will impede legitimate law enforcement or endanger the public. To scale the issue, consider that in 2013 law enforcement was unable to decrypt wiretapped communications a total of 9 times; that doesn't mean officials couldn't find some other evidence to convict, either.

As Julian Sanchez explains, we’ve already fought the crypto wars. The FBI lost. Cryptography is critically important not just for a healthy democracy, but for a healthy economy.

Officials talk about how the FBI is “going dark” because consumer technology moves faster than government bureaucracy, and the feds can’t catch up. James Comey says the post-Snowden "pendulum" has swung too far in the direction of privacy. That's madness. We actually have the reverse problem. Congress has failed to pass even the simplest and least controversial privacy law upgrades, leaving the law stuck in the analog 1980s while our technology zooms ever faster toward the nano-digital future.

If we have any problem with technology and the law today it is that law enforcement has far too much power to conduct warrantless and sometimes even dragnet warrantless surveillance. We lowly subjects are more subject to invasive corporate and government spying than ever before—in the history not just of the United States but human history.

If there’s any reason to take heart amidst James Comey’s media blitz this week railing against encryption, it’s that the courts and state legislatures aren’t under the FBI’s thumb. They recognize there’s a place for robust privacy protections even in a technologically advanced society. Encryption is part of that compact, whether the feds like it or not.

© 2021 ACLU of Massachusetts.