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After Riley, Maybe the Supreme Court Isn’t as Scared of Tech as We Thought

A few months back I wrote a piece on how the Supreme Court is scared of technology. Much of it was based on comments from Justice Elena Kagan – “The justices are not necessarily the most technologically sophisticated people” – Justice Antonin Scalia (who said other government branches were better equipped to grapple with privacy and security protections) and a fairly goofy exchange between Chief Justice John Roberts, a lawyer and Scalia.

In light of Wednesday’s shockingly unanimous decision in Riley v California, it is clear that the justices do, in fact, have a sense of the technology involved.

That’s a huge deal. As IAPP Westin Research Fellow Dennis Holmes pointed out, “The court’s ruling in Riley signals an important shift in the notion of privacy as it relates to digital information.”

The New York Times’ Farhad Manjoo wrote that both decisions this week (the other denying Aereo the right to rebroadcast network television) “were both wins for industry, because they revealed something that should be quite gratifying to every technologist: The Supreme Court understands technology.”

The decision, Manjoo writes, “reveals a deep technological savvy.” Cellphones contain an enormous amount of rich personal data. As Roberts pointed out in the decision, “The sum of an individual’s private life can be reconstructed through a thousand photographs labeled with dates, locations and descriptions; the same cannot be said of a photograph or two of loved ones tucked into a wallet.”

The court even suggested – in countering arguments from law enforcement – that police have technical means to protect a suspect’s phone from being remotely wiped clean of criminal data.

More deeply, Tim Edgar notes in a Re/Code post that the Supreme Court even understands the value of encryption. He adds,

Importantly for digital privacy and security companies, the Supreme Court had no time for the government’s complaints that common security features — like encryption — justified dispensing with Constitutional protections. It is clear that the justices saw encryption correctly, as an ordinary and prudent privacy protection, not as some exotic feature designed to thwart the needs of law enforcement.

However, not all courts see it that way. As we reported, the Massachusetts Supreme Judicial Court decided a suspect can be compelled to disclose his encryption keys without violating the Fifth Amendment.

But the high court ruling is a great sign for the privacy world.

Edgar continues,

Communications technology is no longer new, or exotic and the price for using basic information services — or using common-sense security measures like encryption — should not be giving up your basic rights. Perhaps the most maddening notion out there is that privacy intrusions are our fault, for using entirely commonplace technology.

As Edgar exclaims, “The Supreme Court gets it,” and with that, “We need rules to protect privacy in today’s world.” And, he points out, he has a vested interest in this as an advisor to an encrypted e-mail service. The rules may be some time coming, The Hill reports Rep. Zoe Lofgren (D-CA) admitted that Congress has “no appetite” for consumer privacy legislation at this point … but it does have motivation to reform government surveillance.

True, this case revolves around criminal activity and the Fourth Amendment, but if the Supreme Court gets the value of digital data protection – all the way down to the value of encryption – businesses and organizations of all shapes and sizes need to understand that value as well. This is yet another tool in the kit for privacy pros trying to spread the word of privacy’s value throughout their organizations.

3 Comments

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  • Jim Brashear Jun 30, 2014

    The Court's majority opinion also gets it right that: "Remote wiping can be fully prevented by disconnecting a phone from the network. There are at least two simple ways to do this. . .." So, even self-admitted technology Luddites who have not gotten around to using email in chambers know that you cannot rely on remote wipe to delete sensitive data from mobile devices. The opinion also indicates that the Justices believe that dropping a smartphone in a Faraday bag will prevent it from auto-locking. That's not quite so savvy.

  • Jon Wilkinson Jun 30, 2014

    I wish I could share the optimism. However, the Riley decision did not require any significant amount of technical savvy and Aereo raises significant concerns. Instead of looking at the technical underpinnings of Aereo’s service to determine if infringement was occurring, the Court based its decision on the observation that Aereo appears to produce the same output as cable television. Notwithstanding the majority’s naïve (and hollow) statements that to the contrary, there are many online service providers that should be highly concerned about a judiciary that decides copyright cases without looking more carefully at the technology itself.

  • Jedidiah Bracy Jul 1, 2014

    Thanks Jim and Jon for pointing these out. Sarah Jeong also posted a scathing criticism of both articles cited above (NYT's Farhad Manjoo and Re/code's Tim Edgar) It's worth the read. Here's the link to it: http://www.forbes.com/sites/sarahjeong/2014/06/27/not-all-tech-journalism/ The larger point I was trying to make is that a court known for it's lack of technological know-how even realizes that the digital landscape is fundamentally challenging legal precedent and and old notions of data protection--and if they realize it, businesses better realize it, too--admittedly with more technological savvy than the Supreme Court, of course.

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