Most Americans, aware that we have First Amendment freedoms of speech (political or otherwise) and assembly, take offense to police actions that can arbitrarily take these rights away without judicial process. More importantly, Americans may not realize that such police action is an effort to further erode Americans' Fourth Amendment rights to privacy (see Ninth Amendment too). In an effort to clarify if there are any limits on law enforcement seizing access to Americans' cell phones, many courts have begun to rule. Unfortunately, not all courts have ruled in accordance with the limits on the reach of Government we all know as the Bill of Rights!
According to The New York Times, some courts cannot agree whether there is any expectation of privacy for text messages! Really? If I choose to send a text message to someone, how can anyone begin to think that I therefore intended to make that text available to the public? On the flip side, does that mean that for real privacy reasons, no text messaging should be ever communicated because it could be considered "public?" How does this jive with Freedom of Speech under the First Amendment? What about cell phones that lock? Doesn't that mean we have an expectation of privacy in our cell phones?
Based upon the Electronic Communications Act of 1986 that regulated governmental access to digital data, some courts have allowed searches and seizures of cell phone data without a warrant or reasonable probable cause. Take a wild guess how much more sophisticated cellular phone technology has become over the past 26 years! Based upon this reality, the United States Senate is offering an Amendment to the 1986 Act that would require warrants to search e-mails, regardless of their age. But what about restricting free access to text messages and/or other data stored on today's modern "Smartphones?" Although the U.S. Supreme Court has not ruled on this important issue, it has previously ruled that using GPS devices placed on vehicles to track potential criminal suspects require a search warrant. But what about an individual's cell phone that can "do it all?"
Until citizens demand that Congress act to protect our freedoms under the First, Fourth and Ninth Amendments, will we be identified, tracked and exposed by law enforcement without probable cause? On this account, shouldn't we demand Congress and the US Supreme Court disconnect from Big Brother?
For more on communication and privacy see Chapter 14 of "How Our Government Really Works, Despite What They Say."