Peter A Clarke

Mobile apps are notorious for being gateways into an organisation’s records.  The quality of data security is generally poor.  Sometimes worse than that.  Privacy regulators have been alive to this for some time.  Security experts for a lot longer.  But the relentless desire to be relevant on line and high expectations of consumers to access services, products or information has meant that mobile apps are becoming ubiquitous. The problem is the security architecture rarely takes first, second or third priority in the design and project expenditure.

There is another issue with mobiles, their apps and privacy in terms of information police can access without a warrant.  This issue is considered by the Economist in There’s no app for that which provides:

SUPREME Court oral arguments, some scholars say, are all show. The justices don their robes, stroke their chins and lob their questions at silver-tongued lawyers for an hour, and then vote just the way they would have voted anyway. According to Jeffrey Segal and Harold Spaeth, political scientists who study the Court, judicial “attitudes”, not the subtleties of legal principles, matter most in the justices’ decisions. Oral argument does not “regularly, or even infrequently, [determine] who wins and who loses.”

If the justices entered the courtroom on April 28th sure of their votes in this year’s biggest and trickiest fourth-amendment cases, they hid their certainty brilliantly. After reading the 113 pages of oral argument transcripts from Riley v California and United States v Wurie, I felt some sympathy for these justices. They are working hard for their $232,248 annual salaries. The fourth amendment requires a specific search warrant, with probable cause, before law enforcement can rifle through a suspect’s home, papers or effects. But there are exceptions, and cases have set precedents permitting warrantless searches of purses, briefcases, address books and pagers, where incoming messages might overwrite earlier ones. Now the Supreme Court justices are being asked to determine how mobile phoes fit into this legal landscape.

The court seems to lack both a majority for a rule banning warrantless searches of mobile phones by police and a majority for a rule permitting them. Americans are similarly divided but lean in favour of greater police power, as a Qriously poll of 1,000 Americans I conducted on Tuesday afternoon reinforces. The arguments in Washington, DC, were a desperate search for middle ground. But each time a possible third way was floated, one or more justices explained exactly why it comes up short.

Riley and Wurie both address how the 1791 rule against “unreasonable searches and seizures” applies in the mobile-phone age—an era in which, as Andrew Pincus calculated, any iPhone owner can tote around “800 million words of text” which is “enough to fill more than a football field’s length of books, or over 8,000 photos, 260,000 private voice mails and hundreds of home videos.”

Should police officers have access to all that data each time they arrest someone? The justices were sceptical. Justice Elena Kagan, both the newest and the youngest member of the Court at 54, identified the generational trend: “Most people now do carry their lives on mobile phones, and that will only grow every single year as, you know, young people take over the world.” It seems unreasonable, Justice Kagan implied, that “absolutely everything” about you—your bank records, your personal photos, your texts, your emails, your GPS data—should be accessible to a police officer without a warrant. At least five Justices—Antonin Scalia, Ruth Bader Ginsburg, Sonia Sotomayor, Anthony Kennedy and Stephen Breyer—seemed to agree, as did the Chief Justice, John Roberts. Justice Scalia called the prospect “absurd.”

Yet few justices seemed comfortable with a bright-line rule against mobile-phone searches that had not been warranted by a judge. They showed fewer signs of concern in the Wurie case where police had consulted a call log in the flip phone of a man arrested in Boston on gun and drug charges than in Riley, where a smartphone was at issue. But if the justices vote to permit searches of Motorola Razrs while respecting the privacy of the iPhone owner and his treasure trove of data, they may perversely incentivise the last flip-phone holdout criminals to spring for smartphones. What then?

One path through the thicket, raised by Justice Sotomayor and pushed by Michael Dreeben, the deputy solicitor general, would be to permit police to access only data stored on the phone itself rather than what’s on the “cloud”, or as she put it, using Apple’s proprietary nomenclature, “the iCloud.” Yet Justice Kagan sensibly responded that “even the user doesn’t know what what’s on the cloud or not.” Another limiting principle proposed by Mr Dreeben was to use a so-called “scope focus”, a rule that only material truly related to the crime under investigation may be accessed. “I can assure you”, Mr Dreeben said, this standard would “be enforced by defendants”. At this Chief Justice Roberts furrowed his brow:

It’s very hard to see how that limit would be applied. You can see and the police would be able to articulate why almost every application, every entry on a cellphone would reasonably be anticipated to have evidence of a particular crime. Obviously e­-mails, obviously call logs. Even, you know, Facebook. If it’s a weapons crime, maybe they’ve got pictures of themselves with guns. I mean, I have trouble imagining what application, what entry police could not say it’s reasonably likely that there would be evidence of the crime.

Justice Breyer was similarly unimpressed. A warrant is necessary, he said: “a policeman can get a little carried away”, requiring the intervention of a “third dispassionate mind”.

The nine dispassionate minds at work on Wurie and Riley have a tough task before them. As the justices work out a rule for what Justice Kennedy called “a new world”, the justices must set a policy that will bend to accommodate technologies unimagined by the founders yet remain viable as times continue to change. The magnitude of this challenge became clear in an exchange between Mr Dreeben and Justice Sotomayor. The justice wondered why the police can’t just put the smartphone in “airplane mode” to prevent criminals from wiping the data remotely and secure the phone to await a judge’s warrant. “[T]he assumption that we’re going to have airplane mode,” Mr Dreeben said,

and that the Court should craft a constitutional rule around airplane mode assumes that cell phones are not going to be able to be used in airplanes in the next five years and that manufacturers will continue to make an easily available button for airplane mode.  I don’t think the Court should found a constitutional ruling on that assumption.

The justices are expected to announce their decision in June. Clearly what is needed is an iDecide app. But that may still be a few years and a constitutional convention away.