By Tom Still
MADISON – You wouldn’t guess it based on its sharply divided
decisions in the “Hobby Lobby” contraceptives coverage case or the Illinois
public-employee fees ruling, but this U.S. Supreme Court has achieved consensus
more than any other in recent history.
In fact, the Supreme Court term that ended June 30th
featured 9-0 decisions in nearly two-thirds of orally argued cases. That’s the
largest show of unanimity since 1940, according to experts who follow the court
and its history.
One such example of consensus among the jurists who make up
the nation’s highest court was the 9-0 ruling that police need warrants to
search the cellphones of people they arrest. It’s a decision that is likely to
apply to searches of tablets, laptops and other connected devices, as well.
“Modern cellphones are not just another technological
convenience,” Chief Justice John Roberts Jr. wrote for the court. “With all
they contain and all they may reveal, they hold for many Americans ‘the
privacies of life.’ “
Americans have been skeptical of broad police searches since
before the Revolutionary War, in part because British officers were fond of
rummaging through homes in random searches for evidence of rebellious or
criminal activity. The court reasoned that “smart phones” in 2014 are an
extension of the home because they are mini-computers containing more data than
entire houses once did.
The court’s decision was limited to police searches in
connection with most arrests – it’s still legal to conduct a warrantless phone
search in a true emergency – but it reflects a larger societal and business
trend toward protecting digital privacy.
Facebook became somewhat infamous over time for its
complicated privacy settings, which discouraged users from keeping personal
information to themselves and their circle of friends. For much of its 10-year
history, Facebook more or less compelled new users to default to settings that
allowed information to be viewed widely across the Internet.
Today, Facebook appears to be turning a new page. Perhaps
driven by competition from social media services that are more anonymous,
Facebook announced in May it would give a privacy checkup to its nearly 1.3
billion users. It has also explained to users that setting their privacy to
“public” means anyone on the Internet can see their photos and messages. In
June, Facebook also gave users the ability to review information that dictate
how and when product advertising is pushed to them.
Of course, this is the same Facebook that took part in a
recently published study that suggested social media can manipulate the
emotions of users by tweaking what is allowed into those users’ news feeds. The
2012 study changed the news feeds of 689,000 people for a week without their
consent, triggering an outcry from privacy advocates when it was published.
In Europe, where some court rulings have gone so far as to
allow people to erase unflattering or even incriminating web page links,
Internet “cloud” companies are cashing in on consumer demand for greater
To lure customers, companies such as Finland-based F-Secure
are pointing out that their data centers are located in the European Union,
where privacy laws are more stringent than those in the United States. They’re
trying to win market share from American companies, such as Amazon, Microsoft
and Google, which remain the gold standard for providing distributed storage
and delivery of digital data.
As the Supreme Court noted in its 9-0 cellphone ruling:
“Privacy comes at a cost.” The world already contains more connected devices –
cellphones, tablets, computers and more – than it does people. Those devices
are producing and storing staggering amounts of data, much of which can be
accessed by people other than those who created it.
It’s unrealistic to believe any law or cybersecurity measure
will turn back the clock in an age of data analytics. It is realistic, however,
to expect that individual liberties and protections that are a part of the
American experience can and must co-exist in a digital age.