By way of full disclosure:
- I own a smart phone
- I store some data on the phone
- I do not store highly sensitive data on the phone
- The phone unlock is secured by fingerprint and long relatively secure password
- The data on the phone is encrypted
- I am a very senior technologist very familiar with the related technologies.
Now lets consider privacy.
If my phone is lost or stolen do I need my data secured? Not really, but then I do not store highly sensitive data on the phone.
In my particular case there is some inconvenience and marginal risk but it is really rather minimal.
It is significant that I'm a technologies and know technology actually works and have considerable experience with the way technology companies really behave. I have made an informed decision that neither the technology or the companies that provide it may be trusted to keep sensitive data secure. That being the case I rationally choose to limit my exposure. Others might want to think about that as well.
So am I willing to unlock my phone and have my data exposed if the phone is lost or stolen? No. My concerns are twofold.
First, I believe in personal privacy generally. I believe that each of us should get to decide for ourselves what to share, when to share, and who to share with. If I take a photo at a family gathering, there is really no harm in the entire world seeing it, but that doesn't make it the business of the whole world. If I do not choose to share no one else should have a right to see it. It is a matter of principal. So if by some mischance I loose possession of my phone I do not want others to have access to data on the phone.
Second, knowing the way phones and billing actually work, I really, really, really do not want someone else to be able to use my phone to create bills attributable to me. It is actually this matter that I am most concerned about, not the actual data on the phone.
What about people who actually store sensitive data on their phone? I believe that such people are stunningly naive. But, I acknowledge that cell phones are remarkably useful, more or less ubiquitous, and many people think it is OK to store sensitive data on their cell phone.
Should the data of people who actually store sensitive data on their phone be protected? Yes. As a society we frequently require that we be protected from our own mistakes and bad decisions. So while storing sensitive data on your phone is, in my view, a bad decision, I do think it should be protected.
Should that protection be absolute? No. Privacy rights in the US derive largely from the Fourth Amendment. That protection immunizes data from search
unless there is a valid warrant.
This is one of the central issues at the core of the current Apple v. FBI controversy. Notwithstanding all that has been said or written there is simply no absolute right to privacy in law. Indeed, claims that cell phone data should have an absolute privacy right are novel and unprecedented in that no other data storage mechanism or device, save a corporal human, possesses such rights.
Much that has been said or written effectively asserts just such a right but it does not exist, nor, in my view should it. The Fourth Amendment expresses two essentials of privacy. The first principal is that by default our person and writings, and by extension our data, is private and not subject to government scrutiny. The second is that notwithstanding the first principal there are circumstance where there is a legitimate government interest that overrides the first principal. That is what a warrant is.
Should an exemption to warrant search be created for cell phones? No.
While there are exceptions to warrant search, such exceptions are rooted in profound social relationships such as marriage or religion. While many may have a strong personal attachment to their cell phones there is simply no underlying social relationship.
It is important to realize that cell phones that store data are simply small computing devices able to connect to various networks for various purposes including making actual phone calls. The principal distinguishing characteristic from other computers is their size. Indeed, everything I can so on my cell phone, I can do on my laptop or on my desktop even though I can not put either of these in my pocket.
Other computing devices do not have warrant exceptions. Indeed, such devices are routinely subject to search under court order.
Common sense
- Cell phones should support privacy
- It should not be immune to warrant search
