Saturday, December 7, 2013
By Roger Katz
AUGUSTA - I am now the proud owner of an iPhone. What an amazing invention!
Making phone calls is only the beginning. I can figure out exactly where I am on the face of the earth, identify the best Chinese restaurant in Ames, Iowa, and plot a turn-by-turn course to drive there, all the while pinpointing exactly where I am along the way.
I can send and receive emails and text messages and even dictate them (as I'm doing now).
This ever-improving technology is making our lives better in ways we never imagined. But with all this good comes the potential for mischief, specifically the real threat to invasion of our personal privacy in ways that ought to scare the heck out of us.
Technology gives government and corporations alike alarming new powers to spy on average Americans. When I set out for that Chinese restaurant in Ames, Iowa, my cellphone provider has a step-by-step record of where I started, where I ended up and where I stopped along the way.
That kind of geolocation data, along with every email and text each of us receives or sends, is stored by the telecommunications provider.
Recent revelations indicate that law enforcement is accessing this information from communications providers on a massive scale. This new source of information can certainly be a useful tool to the police in solving crimes, and we should all be glad of that.
However, I think most people would agree that these "private records" should be turned over to the government only if there is a darned good reason.
As one federal judge put it in reference to location records, one's location might reveal "whether he is a weekly churchgoer, a heavy drinker, a regular at the gym, an unfaithful husband, an outpatient receiving medical treatment, an associate of particular individuals or political groups -- and not just one such fact about a person, but all facts."
Certainly, we all want the police to be able to obtain these records in an emergency. If a child with a cellphone becomes lost, if a confused older person wanders off or if there is a crime in progress, police must be able to access provider records immediately.
Absent such an emergency, however, shouldn't the police have to convince someone there is a darned good reason before they access the most personal of our records? The questions then are "what is a good reason?" and "who gets to make that decision?"
The Founding Fathers answered those questions for us with the adoption of the Fourth Amendment to the Constitution back in 1789.
While they could never have imagined smartphones, they sure thought about the concept of privacy, and they agreed we should be safe from police intrusion into our lives absent a showing of "probable cause" to believe someone has violated the law. And they wrote that the "decider" should be a judge.
That is just the concept we put into Maine law this year. Some argued that we were already protected by an old federal law, but that was far from clear.
The relevant federal statute was passed back in 1986, when cellphones were the size of breadboxes and had no GPS, texting or email capability. Did it apply to today's reality? Some courts said "yes," others "no."
To make things crystal clear in Maine, I worked with the American Civil Liberties Union of Maine and sponsored two pieces of legislation making sure that, absent an emergency situation, prosecutors and police agencies must seek and get a warrant from a judge before our private records can be disclosed.
The police must also let the person whose records have been searched know about it, although a judge can waive that requirement if the police make the case that such disclosure would interfere with an ongoing criminal investigation.
Will this create some additional burden for law enforcement? You bet it will. But I think that's exactly what the Founding Fathers had in mind when they adopted the Fourth Amendment.
As Ben Franklin said: "Those who surrender freedom for security will not have, nor do they deserve, either one."
By passing this legislation, Maine has become a leader nationally. We are one of only two states that now protect our people's cellphone communications.
None of us wants to interfere with the police's ability to "catch the bad guys." At the same time, we want to protect our privacy and keep the government from snooping into our lives unnecessarily. It is a difficult balancing act. Here in Maine, I think we got it right.
Roger Katz of Augusta is assistant Maine Senate Republican leader.