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July 12, 2011

British Phone Hacking

Here's a brief comment on the British cell phone hacking scandal, and how it has caused me to reconsider what I thought was an established issue. By now, everyone should know the basic outlines of the scandal. Some of the best coverage is on the Guardian website.

As the coverage explains, the phone “hacking” was not very sophisticated. Supposedly, the paper used a caller ID spoof to access cell phone voicemail boxes. This access was possible because many early voicemail systems used caller ID instead of a password. Later, the paper was able to access messages because individuals did not change the default password.

SBritishphoneome more recent news reports suggest that reporters may have bribed police officers or used other potentially illegal methods to obtain information, including data obtained from cellphone-tracking technology. However, I want to focus on the voicemail password implications of this story for the Fourth Amendment analysis.

From the Fourth Amendment perspective, the Supreme Court has famously held that a search occurs when "an expectation of privacy that society is prepared to consider reasonable is infringed." Katz v. United States, 389 U.S. 347 (1967). 

In a recent law review article, I wrote that “There is little dispute that a person has a subjective expectation of privacy in the contents of his or her cell phone.” But perhaps -- and I'm not committing to  anything here, yet -- I was wrong. In order to maintain privacy, cell phone users must take reasonable steps to safeguard that privacy. It could be argued that by not taking the simple step of changing the default pin code, the users were in effect saying that they did not care if other people could access their voicemail messages.

The implications of this for government searches is huge. If a court were to decide that when people don’t change the default passcode on a voicemail box, those people don’t have a reasonable expectation of privacy, then law enforcement would be free under the Fourth Amendment to search those messages without a warrant.

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