White House Press Secretary Sean Spicer recently summoned about a dozen members of his communications staff to an emergency meeting, and as they entered the room he asked them to surrender their mobile phones so White House lawyers could check them to see if they might have been used to leak inside stories to the media.
Spicer reportedly warned them that this investigatory effort would seem like "recess" in retrospect if it didn’t reveal those in their midst who had fed so many inside stories to the dreaded media. He also reportedly warned that there would be harsh consequences if news of his phone check leaked out.
The funny part is that, of course, the news did leak out. Politico broke the story, multiple news outlets confirmed it and President Donald Trump, when asked about the phone check in a televised interview Tuesday morning, seemed to acknowledge use of the tactic by answering, "I would have handled it differently than Sean, but Sean handles it his way and I’m OK with it."
The scary part is … phone checks?
Maybe in an earlier time, when a mobile phone was just a basic communication device that contained a record of incoming and outgoing calls, such a probe wouldn’t sound like such a violation of privacy.
But modern smartphones are virtual diaries. They contain a robust "cache of sensitive personal information" that "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 cellphone can also reveal where a person has been."
Those are the words of U.S. Supreme Court Chief Justice John Roberts writing in Riley v. California, a 2014 case in which the court unanimously ruled that warrantless searches of the digital contents of cellphones are unconstitutional.
"It is no exaggeration to say that many of the more than 90 percent of American adults who own a cellphone keep on their person a digital record of nearly every aspect of their lives — from the mundane to the intimate," Roberts wrote.
The argument that finding a phone on a suspect makes it OK to search that phone for possibly relevant data is "like finding a key in a suspect’s pocket and arguing that it allowed law enforcement to unlock and search a house," Roberts wrote. Actually worse, Roberts wrote, because "a cellphone search would typically expose to the government far more than the most exhaustive search of a house."
And that was in 2014. Today’s typical smartphone not only has more local storage than it did then, but it contains more links to personal data stored in the "cloud," making it even more of a portal to almost everything about a person.
Even the most innocent, loyal member of Sean Spicer’s communications team might be reluctant to fling open such a portal for the boss to wander into. It’s unclear whether Spicer’s phone check identified any offenders — even moderately tech-savvy leakers use home phones or untraceable "burner" phones — but realistically, what choice did members of his staff have? Anyone who refused would immediately have become a prime suspect and lost the confidence of the supervisors.
Phrased as an ask not an order, such a request is legal whether the smartphone is provided by the boss or owned by the employee, said Lori Andrews, a law professor and director of the Institute for Science, Law and Technology at Chicago-Kent College of Law.
But since smartphones have become "miniature surveillance devices that chronicle our every move — practically our every thought, we need new laws that forbid employers from gaining access" to them, Andrews said. "Under current law, an employee has few, if any, privacy rights when the employer provides the device."
Andrews wrote a book on this subject — "I Know Who You Are and I Saw What You Did: Social Networks and the Death of Privacy" (2012, Free Press) — and proposes a law prohibiting employers from requesting employees to allow access to even company-owned cellphones, "much as we now have laws in Illinois and a dozen other states that forbid employers from asking for the password to our social networks."
Andrews said: "It shouldn’t matter whether the employee ‘consents’ to the search since I would view the consent as coerced. If there is some verifiable reason to suspect that an employee has committed a crime, then the matter should be turned over to police and they should request a warrant," she added. There should be "no more fishing expeditions where employees are seemingly considered guilty until they prove their innocence."
Pending passage of such a law, however, it will pay to keep in mind how many secrets you now carry in your pocket, how vulnerable they are and how safe it still is to use ink on paper when sending inside information to Eric Zorn, Chicago Tribune, 435 N. Michigan Ave., Chicago, Ill., 60611.
Twitter @EricZorn
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