A new Russian bill limits military personnel’s use of smartphones, according to an article published by The New York Times. Lawmakers cited active-duty soldiers’ use of social media, which has caused several political embarrassments for the country in recent years. In the United States, how much do the Constitution and other laws relate to the digital age and what are the exceptions?
In the United States, the Fourth Amendment to the Constitution guarantees American citizens protection from unreasonable searches and seizures. It explicitly states that Americans should “be secure in their persons, houses, papers, and effects.” Law enforcement cannot constitutionally search or seize a private citizen’s assets without probable cause. Some say that cell phones are like a person’s private papers at home and, thus, shouldn’t be searched. However, service providers often retain call records, text messages, data usage, and location data for billing purposes. Therefore, others argue that customers forfeit some privacy rights when they enter a contract with a phone company—a third party between the sender and receiver of data—due to an existing doctrine allowing for evidence seen by multiple parties. For Russia, military use of social media also illustrates a grey area of legal use of the internet. Where exactly do we stand with privacy?
American Privacy Laws and Smartphones
In United States v. Jones, the Supreme Court concluded that police conducted a legal search when they hid a GPS device on a subject’s car and followed him for a month. Contrarily, many compared the GPS data to the historical data on private citizens’ smartphones. One dissenting judge agreed, arguing that the Fourth Amendment should cover the geographic data the GPS gathered. However, the ruling stands.
“The other way the government can search your smartphone or computer is in the course of a traffic stop or arrest or an otherwise legal search of your car,” said Dr. Jeffrey Rosen, Professor of Law at The George Washington University Law School. “Courts are disagreeing vigorously about how far the police should be able to delve into your smartphone or computer without a valid warrant.”
“Neither the Supreme Court nor the lower courts have provided clear protection for the geolocational data we reveal to cell phone companies or to our computers,” Dr. Rosen said. “They also haven’t imposed clear limits on how broadly the police can search computers or smartphones if they seize those devices for any reason.”
Currently, courts rule over smartphone data evidence on a case-by-case basis. Russian troops bring another issue to mind.
The First Amendment, Social Media, and Students
The New York Times report mentions some sensitive information that social media has disclosed. For example, investigators from the online group Bellingcat revealed that soldiers’ online posts from 2014 showed Russian soldiers in uniform in the Ukraine. These social media posts directly contradict official Russian statements that the nation had no military presence there at the time. A similar incident disproved Russian claims of only delivering humanitarian cargo to Ukrainian territory. In reality, Russia smuggled attack helicopters onto its delivery aircraft. If American courts passed a similar law, some would say it violated the soldiers’ First Amendment rights.
But what First Amendment rights to Freedom of Speech do social media accounts offer their owners? That answer depends on where the speech is being made and how disruptive it is. “If a student writes a Facebook post from her home computer, that post may be viewed by her classmate from a school computer or from a cell phone on school property,” Dr. Rosen said. “But because the online speaker has no control over where her speech is received, she is at the mercy of her audience. Given this vulnerability, drawing a sharp geographical line based on the speaker’s location may be the only way to adequately protect a speaker who has no control over where her speech may be perceived.”
Ultimately, the highest courts in many nations have not reached a conclusion about smartphone use and privacy. Such rulings may be years or even decades away. Even still, Russia’s decisions indicate that their government’s mind is made up.
Dr. Jeffrey Rosen contributed to this article.
Dr. Rosen is Professor of Law at The George Washington University Law School, the legal affairs editor of The New Republic, and a nonresident Senior Fellow at the Brookings Institution. He is also president of the National Constitution Center in Philadelphia.