Page 85 - Privacy in a Cyber Age Policy and Practice

PRIVACY: A PERSONAL SPHERE, NOT HOME-BOUND 71

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in Riley v. California, the Court ruled that the warrantless search of the
contents of a smartphone incident to arrest constitutes a Fourth Amendment
violation because the volume and bandwidth of information contained on
smartphones is much higher than the information contained on other
sources. The Court wrote, “many of these devices are in fact minicomputers
that also happen to have the capacity to be used as a telephone. They could
just as easily be called cameras, video players, rolodexes, calendars, tape
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recorders, libraries, diaries, albums, televisions, maps, or newspapers.”
Their storage capacity is far beyond physical storage capabilities, and most
people now carry around “a cache of sensitive personal information” in the
form of a smartphone. Cell phones that contain vast quantities of data, the
Court held, are thus qualitatively and quantitatively different than physical
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containers the Court had previously analyzed. In short, there are some
precedents for using volume as a criterion.
Sensitivity is the second criterion. Privacy scholars and lawmakers have
often articulated and operationalized the observation that some kinds of
information are more sensitive than others, albeit using a variety of terms
including “intimate information” and “revealing information.” In the
United States, Congress has ranked many types of information according
to sensitivity. An individual’s medical information is granted a high level of
protection; financial information is not regarded as sensitive but nearly so.
Additional types of information entitled to a relatively high level of pro-
tection include education records (Family Educational Rights and Privacy
Act), genetic information (twenty-seven state legislatures had regulated the
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disclosure of identifiable genetic information in some way as of 2008 ),
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and journalistic sources (Privacy Protection Act of 1980 ). The FTC has
classified five categories of information, namely financial information,
health information, social security numbers, information collected from
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children, and geo-location information, as sensitive data. The result of
this piecemeal consideration is a crazy patchwork quilt. However, given
that many kinds of information have already been ranked, it would not
take a great deal of legislation to systematically rank the level of sensitivity
of all the major kinds of information.
Cybernation is the third criterion. It concerns the scope of processing
and secondary uses of information. It includes storing, collating, analyzing,
and distributing discrete items of information in concert with numerous
others. To demonstrate this difference, an example that encompasses all
three criteria follows. First, consider a situation in which the volume of
information collected is low, the sensitivity of that information is low, and
the information is only minimally cybernated. This occurs when private
enterprises employ CCTV to enhance their security. The footage contains
a low volume of information; basically only whether a given person was at