Law struggles to adapt to high-tech gadgets
By Mike Wereschagin
Published: Saturday, Dec. 21, 2013, 12:01 a.m.
When Boston police grabbed Brima Wurie's cellphone and searched it for evidence of a drug deal, they relied in part on a Supreme Court case 10 years older than the world's first cellular network.
Wurie's challenge of the search is one of several cases the U.S. Supreme Court could take up this term in its never-ending pursuit of fast-moving technology. From government snooping to cellphone technology to wearable computers and driverless cars, the tech world is reshaping how people live far faster than the legal world can adapt.
“Technology is not subject to rules governing how fast it can go. Technology goes as fast as it goes,” said Michael Madison, University of Pittsburgh law professor and director of Pitt's Innovation Practice Institute, which trains lawyers to work with entrepreneurs.
Personal cellphone use transformed social interaction over the past decade, yet two of the major cases that allow the government to search phones were decided in 1969 and 1979, the year the first cell network activated — in Tokyo.
In 1979, the Supreme Court ruled that police did not need a warrant to see whom a person dialed because phone companies, not individuals, kept that information. But in the cellphone age, calls include more than numbers; they include location data.
“From that information, (police) can figure out whether you go to a church on Sunday, a mosque on Friday, a synagogue on Saturday. Did you go to an AA meeting? A gay bar?” said Hanni Fakhoury, lawyer for the Electronic Frontier Foundation, which advocates greater privacy protection.
That 1979 case dealt with a few calls over a few days from one person, yet the National Security Agency used it to justify a program that vacuums up and stores for five years much of the call data in the United States.
NSA analysts can see every number a person called in the past five years, check all the calls of those people over the same five years and then check all the people those people called as well, according to a lawsuit challenging the program in the Federal District Court for the District of Columbia.
If that first person called 100 numbers over five years and everyone in the two subsequent layers called 100 people, the NSA's net would ensnare the phone records of 1 million people, Judge Richard J. Leon wrote.
When the case was decided, the notion that government would be capable of such an operation “was at best, in 1979, the stuff of science fiction,” Leon wrote.
He ruled the program likely violated the Fourth Amendment guarantee against unreasonable search and seizure.
Privacy advocates worry that devices such as Google Glass — a computer worn like glasses that includes a tiny screen and a video camera — will make it impossible to know when someone is being watched and recorded. But they've raised a problem for law enforcement, too. A California woman was ticketed in October for violating California's law against having a video screen on in the front of a vehicle.
The woman, Cecilia Abadie, said it was off — something the police officer can't know for sure because the screen is visible only to her.
“We are just getting to the start of what technology can do,” Madison said.
A case the Supreme Court decided in 2012 — United States v. Jones — shows how rapidly changing technology can rocket past the laborious judicial process.
The case began when police put a GPS tracker on a suspect's car without a warrant in 2005 — before Apple released the first iPhone and Facebook expanded beyond college campuses.
Location data in today's smartphones, combined with “check-ins” and other information that people post online voluntarily, made the GPS trackers in the Jones case all but obsolete, said Wesley Oliver, Duquesne University law professor.
By the time the Supreme Court ruled police should have gotten a warrant, officers interested in someone's whereabouts could walk into a courthouse for a subpoena rather than sneak into a parking garage to stick a transmitter on a suspect's car.
Driving the debate
“There's always going to be some kind of technology frontier that gets out ahead of where the legal system is,” Madison said.
Automobile technology pushed the boundaries of American law since Henry Ford's Model T became popular.
“When you put automobiles in the hands of an enormous amount of people, a lot of good things happen, but also a lot of horrible things happen. People start to die or be maimed. Judges start taking on lawsuits. You start to build up a body of law,” Madison said.
Carnegie Mellon University scientists outfitted a car with an autonomous navigation system that allowed it to ferry two top transportation officials from Cranberry to Pittsburgh International Airport in September.
A state police spokeswoman told the Tribune-Review then that no laws govern computer-driven vehicles, and she wondered whom police would cite if the driverless car broke a speed limit or rear-ended someone.
“We're not going to have a good sense of that until we have a lot more of them,” Madison said. “What does it feel like to be surrounded by automobiles that don't have anybody behind the wheel? Would you put a kid in an autonomous automobile? ... What about autonomous buses? What about autonomous trucks? This is technology that's being applied to what we've been using for 90 years.”
Mike Wereschagin is a staff writer for Trib Total Media. He can be reached at 412-320-7900 or firstname.lastname@example.org.
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