Social and Legal Implications
Social and Legal Implications

The balance between digital privacy and justice is unclear and difficult to determine. Technological advances ease many tasks, but create various risks to the user’s privacy rights whether by the government or by criminal hackers. Technology companies, such as Apple, create high quality encryption algorithms to combat the threat of hacking, but this may be at the cost of law enforcement’s ability to build cases against suspected criminals. In February 2016, Apple requested that Congress create a panel of experts with the specific task of discussing issues of security versus privacy. Apple’s concern was not solely economic, but, rather, was also constitutional. Citing Fourth Amendment concerns, Apple Inc. strongly opposed creating a “back door” which would allow law enforcement to gain access to any iPhone under suspicion of having information useful to an official investigation. The motive, however, was not just based in social justice, but also arose out of fear that iPhone users would be subject to extreme vulnerabilities if the “key” to the proverbial “back door” were to fall into the hands of a criminal.

Technology companies are not the only entities concerned with the implications of the Fourth Amendment in digital privacy. US courts have faced issues regarding the Fourth Amendment and warrantless search and seizures of cellphones and other technological devices. Thus far, the US Supreme Court has ruled that police, typically, are unable to search a cellphone’s digital information without a warrant. Usually, police are permitted to search an individual upon arrest in order to protect law enforcement and the public; this also aids in preventing suspects from destroying evidence. Searching through digital information, nevertheless, is qualitatively different than simply confiscating the device to prevent the suspect from destroying valuable evidence. In an Arkansas criminal case, prosecutors sought information stored on a murder suspect’s Amazon Echo; Amazon refused to release the data so the prosecutors obtained a warrant.
Electronic device users in these situations can rest assured that the warrant requirement remains a safeguard against unwelcome searches and seizures by law enforcement, per the Supreme Court’s ruling.

Although law enforcement is required to obtain a warrant before searching the digital information contained in electronic devices such as a cellphone or a voice-controlled personal assistant, the question remains: what does this mean for metadata collection? The National Security Agency (“NSA”) engages in a metadata collection program. This program requires telecommunication companies to keep record of all communications. The government alleges that the content of these communications is not read by anyone, but the identities of the individuals communicating, as well as the date, time, duration, and location are recorded. Web searches and internet browsing history contain information that most individuals would consider to be private, regardless of whether the websites are accessed via computer, cellphone, or tablet. Professor emerita Marjorie Cohn contends that, if the courts remain consistent in analyzing digital privacy, the metadata collection by the NSA creates the same concerns as the inspection of the information contained on cellphones.

The balance between digital privacy and the obtainment of digital information by law enforcement agents appears to be a far from settled area of the law. Although courts require a warrant before law enforcement is able to gain access to technological devices, the encryption and coding of information may create obstacles for technology companies and issues for the legal system. The primary concern for law enforcement is the prevention of terrorism and securing convictions based on the digital evidence maintained by criminals. Companies such as Google have refused to comply with warrants in unlocking suspected criminal’s phones, inhibiting the ability of investigators to properly inspect criminal activity. Crucial evidence contained in the realm of digital privacy pertaining to terroristic and criminal activities will continue to raise constitutional concerns and ethical disputes for technological companies, end users, and the government.