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First report: Important developments and substantive issues, March-July 2016 2016, para. 21
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- The Special Rapporteur will here outline some preliminary observations in an attempt to move the debate about smartphones beyond privacy, with the intent of eventually moving the debate back to core privacy concerns better informed by the confirmation or abnegation of societal values regarding "the bigger picture". It is the Special Rapporteur's position that other appropriate standards of behaviour need to be examined within society before a more definitive view can be taken about some of the privacy dimensions of smartphone use.
- Body
- Special Rapporteur on the right to privacy
- Document type
- Special Procedures' report
- Topic(s)
- Equality & Inclusion
- Health
- Year
- 2016
- Date modified
- Sep 21, 2020
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First report: Important developments and substantive issues, March-July 2016 2016, para. 23
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- As outlined in Riley v. California: "Modern cell phones … are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy."7 The Supreme Court Justices noted correctly that: Cell phones differ in both a quantitative and a qualitative sense from other objects that might be kept on an arrestee's person. The term "cell phone" is itself misleading shorthand; 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 recorders, libraries, diaries, albums, televisions, maps, or newspapers. One of the most notable distinguishing features of modern cell phones is their immense storage capacity. Before cell phones, a search of a person was limited by physical realities and tended as a general matter to constitute only a narrow intrusion on privacy. More than once the United States Supreme Court Justices note that: Although the data stored on a cell phone is distinguished from physical records by quantity alone, certain types of data are also qualitatively different. An Internet search and browsing history, for example, can be found on an Internet-enabled phone and could reveal an individual's private interests or concerns - perhaps a search for certain symptoms of disease, coupled with frequent visits to WebMD. Data on a cell phone can also reveal where a person has been. There is an element of pervasiveness that characterizes cell phones but not physical records. Prior to the digital age, people did not typically carry a cache of sensitive personal information with them as they went about their day. Now it is the person who is not carrying a cell phone, with all that it contains, who is the exception. According to one poll, nearly three-quarters of smartphone users report being within five feet of their phones most of the time, with 12% admitting that they even use their phones in the shower. The ability of the smartphone to provide a very detailed and accurate profile of its user is likewise identified by the Justices:
- Body
- Special Rapporteur on the right to privacy
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Health
- Year
- 2016
- Date modified
- Sep 21, 2020
Paragraph
First report: Important developments and substantive issues, March-July 2016 2016, para. 25
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- The United States Supreme Court Justices in Riley v. California were primarily concerned with outlawing warrantless searches of smartphones in terms of privacy considerations inherent in the Fourth Amendment to the United States Constitution. It is relevant to point out, however, that the situation regarding cell phone security and encryption may be significantly more complex than one solely revolving around arguments of privacy and security. It may only be a matter of time before the United States Supreme Court Justices are faced with the same dilemma that would face the scores of countries around the world which have recognized the right to silence or the right to avoid self-incrimination as one of the standards of decency that a democratic society subscribes to. This is because the very characteristics of a mobile phone which make it such a special repository of personal data, as outlined in Riley v. California, also make it the most obvious tool which could totally and effectively undermine the right to silence, which has been gradually recognized in various jurisdictions since the sixteenth century and which in the United States is recognized as the Fifth Amendment. Put simply, in many jurisdictions around the world - but not all - an accused person has the right to avoid self-incrimination by remaining silent during criminal proceedings against him or her. There are very few exceptions to or qualifications of this right in places as far apart as Australia, Bangladesh, Germany, India, New Zealand, the United States … the list goes on. Yet a judicial warrant to access data held on a phone could effectively breach that right. The accused - hitherto not a compellable witness - may have the right to remain silent, but his or her phone could speak volumes about the most private of his or her thoughts, interests and actions. The accused's spouse or close family may equally be afforded the same status of not being a compellable witness in many jurisdictions. Yet most people would claim that their smartphone knows much more about them than their spouses, so is the smartphone to remain a compellable witness even with a judicial warrant required to access it? So where should logic - and logical consistency - lead us to?
- Body
- Special Rapporteur on the right to privacy
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Year
- 2016
- Date modified
- Sep 21, 2020
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First report: Important developments and substantive issues, March-July 2016 2016, para. 20
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- Now that the Apple versus FBI case is no longer sub judice and, hopefully, people on all sides can think a bit more clearly and less passionately, it is respectfully submitted that since hundreds of millions of Apple smartphones have been sold globally this is a global issue and not one which is of interest solely in the United States. Likewise, the same laws which were used to try and compel Apple to help law enforcement agencies obtain access to the data in that case may be used with other manufacturers who have sold many more hundreds of millions of smartphones around the world than Apple has, especially since more and more manufacturers are building cryptographic safeguards into their products. It would appear that economies of scale mean that we are moving towards a situation where first one third and eventually half of the world's population will own and use a smartphone. Thus, as will be seen below, we are faced with a simple fact: the smartphone is a ubiquitous technology which has huge ramifications for privacy.
- Body
- Special Rapporteur on the right to privacy
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Year
- 2016
- Date modified
- Sep 21, 2020
Paragraph
First report: Important developments and substantive issues, March-July 2016 2016, para. 32
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- Some members of the House of Lords do understand the issue perfectly. Lord Strasburger put it quite succinctly: One feature of end-to-end encryption is that the provider cannot break it; encryption is private between the users at both ends. [Earl Howe] seems to be implying that providers can use only encryption which can be broken and therefore cannot be end to end, so the next version of the Apple iPhone would in theory become illegal. I think that there is quite a lot of work to be done on this. The Special Rapporteur thinks so too, and would suggest that much of the work that needs to be done lies in the direction of moving the Government of the United Kingdom away from the illusion that it can effectively outlaw end-to-end encryption or make it unavailable to persons inside the United Kingdom. This proposal is on the same level of illogical thinking as trying to ban knives altogether because they could occasionally be used for harm, or to ban cars because they are sometimes used as getaway vehicles. Moreover, the security risks introduced by deliberately weakened encryption are vastly disproportionate to the gains. Strasburger summarized: I want to emphasise - and anybody in the cryptography industry will spell this out - that you cannot have it both ways. Either encryption is secure, or it is not; it cannot be insecure for a small group of users and secure for everybody else. Lord Paddick pointed to an approach which would be more consistent with the case law of the European Court of Human Rights as last expressed in Zakharov v. Russia: "Instead of the power to force a company to remove encryption from a whole service or technology, alternative and more targeted powers should be used instead."9 The Special Rapporteur can, at the present stage, only wonder when common sense - never mind a deserved respect for fundamental human rights like privacy - will finally prevail in the State's debate on the subject.
- Body
- Special Rapporteur on the right to privacy
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Year
- 2016
- Date modified
- Sep 21, 2020
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First report: Important developments and substantive issues, March-July 2016 2016, para. 24
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- Most important, perhaps, is the realization by the Justices of the United States Supreme Court that the contents of a cell phone are so large in quantity and intimately private in character that they go far beyond the level of privacy that would be intruded upon in a traditional search of one's home as protected by the Fourth Amendment to the United States Constitution: A cell phone search would typically expose to the government far more than the most exhaustive search of a house: A phone not only contains in digital form many sensitive records previously found in the home; it also contains a broad array of private information never found in a home in any form - unless the phone is. In this way, the Justices of the United States Supreme Court showed how the new technology embodied by smartphones has been a game shifter and that at this moment in "Time" (2014), the "Place" (the United States - and the phone located in the United States) where the personal data was to be found had changed significantly to one where portability, quantity and quality of the personal information are capable of completely altering and intensifying the privacy dimension of the personal "Space".
- Body
- Special Rapporteur on the right to privacy
- Document type
- Special Procedures' report
- Topic(s)
- Governance & Rule of Law
- Year
- 2016
- Date modified
- Sep 21, 2020
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First report: Important developments and substantive issues, March-July 2016 2016, para. 26
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- At the present moment in time the Special Rapporteur on the right to privacy is identifying this issue of the smartphone and similar devices (including wearables and implants) as one for future discussion, possibly by or in collaboration with other Special Rapporteurs. No particular opinion or recommendation is being made by the Special Rapporteur at this preliminary juncture. At this stage, it is simply a question of identifying a subject for further investigation as a matter which impinges strongly on privacy, but is not only of interest exclusively to the right to privacy but also to other fundamental rights such as those of due process in criminal proceedings. Some might argue that the logical conclusion of Riley v. California, when applied to the right to silence as distinct from the right to privacy, would mean that in most cases the smartphone of the accused in criminal proceedings should not be a compellable witness - a position which would then also have a significant impact on the right to privacy, certainly insofar as it would be a recognition of how intimate and private the data held on the smartphone might be.
- Body
- Special Rapporteur on the right to privacy
- Document type
- Special Procedures' report
- Topic(s)
- Civil & Political Rights
- Equality & Inclusion
- Governance & Rule of Law
- Health
- Year
- 2016
- Date modified
- Sep 21, 2020
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