In the past 48 hours, two news items emerged that should shock anyone interested in privacy rights. Yesterday it emerged in the UK that rape victims are to be asked to hand over their mobile phones to police, and if not, that they risk prosecutions not going forward. And today it was revealed by the ACLU that U.S. border officials are asserting what is nothing other than the broad and unconstitutional authority to conduct warrantless searches of travelers’ tech devices. This includes the unlawful search of their phones, tablets and laptops, according to the ACLU's court filing today which asserts that U.S. Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE) are overreaching their powers by searching travelers’ devices at the border without possessing a court-approved warrant.
What does the privacy of rape victims have to do with those passing through US borders? Pretty much everything related to how circumstantial evidence manifested through new technology has in recent years been used to support draconian agendas which are patently anti-immigration and misogynist.
In the UK, cases have collapsed when it was revealed that the rape victim knew her assailant or had even sent an unkind text message—as if a woman could not possibly be raped if she knew her rapist or that only benevolent females are raped. One of many examples of this is the case of Liam Allan, from south London, who faced 12 counts of rape and sexual assault until lawyers for the defense discovered that the police had neglected to account for a computer disk showing messages from the alleged victim seeking “casual sex.” In essence, such new tech sources are being opened to the police without any checks within the system as to how this information is used. Ultimately, such a policy puts rape victims in the position to "make a choice between privacy rights and justice"
In the case of US border checks, the ACLU’s case against the government is based on ten US citizens and one permanent resident whose phones and laptops were searched while returning to the United States. Not new to this problem, the ACLU has been highlighting the warrantless searches for many years which impinges upon the freedoms of the Fourth Amendment. This too did not emerge from obscurity but are flowing along the trajectory since 9/11 where electronic surveillance and reporting has taken a more pivotal role in national security. But as with the suspension of habeas corpus and the use of biometrics post 9/11, we are already seeing how new technology has become part of the field of surveillance whereby anyone can be caught within the web of logical fallacies or guilt by association simply because electronic devices can be scrutinized in an extremely narrow field of cases.
It’s no surprise that rape victims are being asked for their electronic devices given that women are still required today to explain the “suspicions” surrounding their having been raped. This is one of the only crimes where police investigations often require that the victim explains why she had dinner with her rapist or why she knew her rapist. Rape investigations often center on the confirmation that the woman may not be telling the truth when, in almost every other crime, the postulate is that these other victims are telling the truth. Add new technology into the mix and you have the complete regression of women’s rights while reports of rape in the UK have increased in recent years even if prosecutions have lowered.
Earlier this month, Andreas Gal, former chief technology officer of Mozilla Corp., returned to San Francisco after a business trip to Sweden for his current employer, Apple Inc. Upon arrival in the San Francisco airport, Gal reported that three armed agents tried to intimidate him into handing over his phone and laptop passcodes, holding him for an hour while questioning him “aggressively” about his trip, his job and his previous work for Mozilla. The questions Gal was asked were pointed and they focused on his views which favor online privacy and stronger encryption, which “happened to be contrary to the government’s view.”
The problem is quite simple: there are civil liberties both in the UK and the US written into law that protect individuals who are traveling or who have been raped. To demand that anyone unconditionally hand over the contents of their tech devices to the police means that there ceases to be any rule of law. Such a paradigm places the power of surveillance firmly in the government’s hands while penalizing those who refuse to comply with what is an illegal search. Violating the Civil Rights of an Apple employee or the rape victims in the UK might seem like trivial procedural matters, but privacy protections are at the heart of a healthy democracy and integral to our cultural values.
