U.S. Ruling On Cellphone Tracking Comes Closer To Analog-Equivalent Rights

This week, an appellate court in the United States ruled that cellphones may not be tracked without a warrant. It’s a good ruling for privacy and one that comes significantly closer to Analog Equivalent Rights: For too long, it has been that any private information that happens to be stored digitally isn’t worthy of any protection at all, just because governments have gotten away with it.

Consider the old-fashioned diary.

In several jurisdictions, a diary is considered so private that it may not be opened or examined, even when the police have a search warrant for a private residence. However, today’s digital equivalent of diaries – that is, our phone and our computer – are merely considered “tools”, the legal equivalent of a wrench or a hammer, and have no protection at all – despite the fact that they’re far more private than a diary ever was.

This is the dissonance created when various vested interests can get away with when refusing to apply old rules to a new reality. Basically, the justification for bulk and warrantless searches has been nothing more than “because we can”. In the case of the warrantless cellphone tracking in the United States, which was effectively turning every cellphone into a governmental tracking device, the justification was even weirder: “because the information has been entrusted to a third party (the mobile telephony provider), no warrant is required”. This is a flabbergasting position.

Let’s imagine that from an Analog Equivalent Rights perspective, the assertion that private data entrusted to a third party enjoys no legal protection at all. If this were true, libraries would surrender your borrowing history on demand, the postal service would open letters in transit without warrants, and telephony providers would let law enforcement listen to anything, because it was entrusted to a third party. But we know this to not be the case. In fact, we know the exact opposite to be the case. So governments have turned to different avenues to erode and mostly eliminate privacy.

Instead, “wiretapping” is a concept that’s broadened horrifically in scope to cover all of the above and much more. It used to mean “listen in to conversations between two people”. Today, it means “examine what you are doing on your own, reading on your own, and practically thinking”. Never before could a government observe what newspaper articles somebody’s reading, for how long, and in what order. This is being justified as “regular application of regular law”, when it is something entirely irregular and an unprecedented power of the government.

I’ve long argued for Analog Equivalent Rights. It’s not a hard concept to grasp: if an activity was protected as private when exercised with analog technology, that same activity is equally protected when using digital technology. Put differently, our children should have at least as strong privacy rights as our parents. Regrettably, we’re orders of magnitude from that point today.

Our children today don’t know what it’s like to hold a private conversation. They don’t know what it’s like to be untracked for things you buy. Or things you consider buying but don’t. What information you search for, what information you read, what information you pass on and share. What information you store on your phone, tab or laptop for later use, and when you bring it back up, and in whose company. Kids growing up today are already conditioned to these being areas without privacy, which means they are nowhere near having the rights and liberties that our ancestors fought, bled, and even died to give to us.

The only way kids today can hold a private conversation is if they’ve learned proper encryption. Governments have demonstrated again and again that they cannot be trusted to safeguard our liberties against themselves.

This week’s appellate ruling, however, was one step in the right direction toward analog equivalent rights. In the meantime, privacy remains your own responsibility.