The High Water Mark, Again

January 5th

On her morning CNBC show Suvannah Guthrie reported that a California court has now revisited the questions of privacy and personal communications. In the reported California case the judge took a radically different approach from the Ohio case that was decided in December. In California the court decided that the police did have the right to information on the cell phone of an arrested man.

Perhaps the Ohio case was too convoluted in the first place (the plaintiff had the expectation of privacy but the evidence that had been illegally attained was not needed for conviction.) But now there are two cases that would seem to disagree with one another. There will no doubt be a Supreme Court case someday soon that will explore the question of the individual’s right to privacy for emails and other electronic communications and it will be a highly charged one.

The idea that electronic communications would be less private than written ones or even phone calls is a huge precedent. A letter is protected by a whole apparatus of postal rules, regulations and inspectors. A court order is needed to open the mail. Yet in the electronic world, in California at least, if someone were arrested (suspicion of some crime such as illegal substances or DUI) and if their phone were taken from them, the information pathway that would be opened (email, phone calls, applications) could be enormous.

The comparison with the Postal Service is a sharp one. I remember at a dinner in 2000 hearing Scott McNealy, the Chairman of Sun Microsystems, make fun of a “letter” as a secure transmission. After all a letter is made of flimsy paper and sealed with spit and handed to a government employee, he noted. The capacity of electronic communications to provide a secure channel far exceeded anything that the Post Office could do, he argued. Certainly he is right.

But what if, in spite of the technological capacity of the medium to protect a communication, the law chooses not to do so?

The high water mark of Internet Communications lasted 2 weeks.

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