Will We Have To Update Our Miranda Rights For The Digital Age?
We have certain rights when we're arrested, chief among them being the right to shut the hell up before we say anything that gets us into more trouble. In the United States, this is part of the Miranda Rights, and most other countries in the world have something similar. To be honest, the Miranda Rights seem so ubiquitous that we kind of take them for granted, but thanks to the wonders of modern technology, there appears to be a loophole sitting right there in your pocket.
"Hey Siri, what type of plastic tub is best for melting down remains?"
Today the small electronic devices we carry on our person might contain more incriminating information than a notebook filled with Dexter Morgan's sea burial coordinates. You might think that your phone would be protected by some kind of law or something -- and it is! -- but it hasn't been for long. It was only a couple years ago that the government decided police should be required to get a search warrant before going through a suspect's phone.
Of course, this hasn't stopped the police from tricking gullible Guses into voluntarily giving up devices and passwords without informing them that they have the right to refuse.
"Say pal, I'm like one level away from finishing Candy Crush. Could I sign in on your phone for a minute?"
They do this by skirting the boundaries of when Miranda Rights are required to be read (normally when a person is about to be questioned), or by not clarifying how those rights might apply to digital devices. If that sounds shady ... well, it's because it is a little shady. But the cops have their reasons. Reasons which are going to get worse in the future.
The problem is encryption. A criminal like a child pornographer already encrypts information on their phone or computer in a way that makes it essentially unbreakable without a password. The law isn't too settled on whether authorities can compel a suspect to provide a password at the moment -- it runs up against the Fifth Amendment pretty quickly -- but if technologically savvy criminals continue to exploit that in increasing numbers, how long do you think it will take before the government decides that merely being suspected of a crime is enough to crack open your personal devices? We got close last year, when the FBI demanded that Apple unlock a phone they had confiscated from one of the San Bernardino shooters, arguing that the phone could contain information about a future crime. Apple refused, claiming that in order to do so they would have to construct a software "key" that could be used to unlock any iPhone at any time. Considering how "suspicion of terrorism" can already guarantee a suspension of habeas corpus, how confident are you in the strength of fundamental rights these days?
E. Reid Ross is the author of Nature Is The Worst: 500 Reasons You'll Never Want To Go Outside Again, which is in stores now and available on Amazon and Barnes and Noble.
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