Many people now expect that they have a “right” to privacy, a right they automatically extend to cell phone use. According to research conducted by the Pew Research Center and published in the NY Times, ownership of cell phones among U.S. consumers is greater than 95 percent (Wegman, 2013). Cell phone use is one of the most common phenomenon among human beings that are approximately 44 years and older according to the same study; but do users have a right to expect that they can enjoy privacy while using their cell phones? No. A recent hearing by the Fifth Circuit Court of Appeals stated that law enforcement agents may research the history of cell phone calls without a warrant (Wegman, 2013). Further, law enforcement agents have reason to search and seize data or cell phones if they suspect that activities are suspicious, or may justify seizure based on reasonable harm, or threat of terror. In fact, there are many other technologies that are available for monitoring thanks to the inevitable threat of terrorist activity. Cell phones are not the only technology that is under privacy attack.
Cell phones are subject to what judicial authorities refer to as a “third-party doctrine” which allows law enforcement agencies and other judicial bodies to access information that you provide others via wireless services according to Wegman (2013). This doctrine is not anything new, but rather was developed in the 70s following the Supreme Court case of Smith vs. Maryland, where the U.S. court affirmed a conviction holding that there is not a “constitutionally protected reasonable expectation” that one should expect privacy, either in the numbers one dials into a phone system, or in the search of number that one dials into their phone (Justia, 1970). The Fourth Amendment guarantees the right of privacy and protection in one’s house, and among ones papers or effects, and may protect against “unreasonable seizures or searches” but key here is determining what unreasonable (Justia, 1970) is. The U.S. government and agents in another case, that of Katz v. the United States, finds that a search protects people, but not places, meaning not a telephone booth, or subsequently, not necessarily a cell phone wireless connection (Justia, 1970). Thus, one may reasonably expect that at any moment in time, their wireless connection is unreasonably safe. This may have been the case for the telephone booths of old, which could easily have been tapped or electronically monitored without a legitimate search warrant.
The key to expectation of privacy, is determining whether one considers that which is searched and seized one’s “property.” One may claim that a cell phone is certainly an individuals’ property, and thus may not be searched without a proper warrant. However, it is much more difficult to claim that a wireless connection, or broadband connection, is an individual’s property, or the number or numbers dialed belongs to one particular individual. The connection itself can be tapped electronically, or by any other number of means. In this way, it is possible to violate an individual’s property, without necessarily violating an individual’s constitutional rights. This is how it is essentially perfectly legal to access one’s information and tap into one’s telephone conversation or other wireless communications without necessarily breaking the law. This is why one cannot expect to reasonably engage in private acts, when using wireless communications via the cell phone. It may be possible to put in safeguards including some sort of security devices to help protect cell phone communications. This in fact is highly recommended in an age where one may also guarantee that there privacy when using cell phones and other devices is compromised.
- Justia. U.S. (1970). Supreme Court Smith v. Maryland, 442 U.S. 735. Retrieved December 5, 2013 from: http://supreme.justia.com/cases/federal/us/442/735/case.html
- Wegman, J. (2013). Cell Phones and the Expectation of Privacy. NY Times. Retrieved December 5, 2013 from: http://takingnote.blogs.nytimes.com/2013/08/01/cell-phones-and-the-expectation-of-privacy/?_r=0