Abstract
In this paper, we employ Extended Cognition as a background for a series of thought experiments about privacy and common used information technology devices. Laptops and smart phones are now widely used devices, but current privacy standards do not adequately address the relationship between the owners of these devices and the information stored on them. Law enforcement treats laptops and smart phones are potential sources of information about criminal activity, but this treatment ignores the use of smart devices as extensions of users’ cognitive capability. In Philosophy of Mind, Extended Cognition is a metaphysical theory about the relationship between consciousness or cognitive activity and various external tools or aids that agents employ in the service of cognition. Supporters of Extended Cognition argue that mental activity must be understood as taking place both within the brain and by way of tools such as a logician’s pen and paper, a mathematician’s calculator, or a writer’s word processing program. While Extended Cognition does not have universal support among philosophers of mind, the theory nevertheless describes how agents interact with their “smart devices.” We explore the the implications of taking Extended Cognition seriously with regard to privacy concerns by way of a series of thought experiments. By comparing the differences in expectations of privacy between a citizen and the government, between an employee of a corporate firm, and between citizens alone, we show that expectations of privacy and injury are significantly affected by taking the cognitive role of smart devices into account.
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Notes
We use Gedankenexperiments as a term of art in place of its translation “thought experiments” to give context to our examples herein and clarify we are not proposing lab experiments about thought processes.
An intuition pump is a variation of a “thought experiment” or Gedankenexperiment in which a scenario is contemplated to expose naive or preexisting intuitive beliefs to a conscious reflection. See generally, Intuition Pumps and Other Tools for Thinking, Dennett, Daniel C., W.W. Norton & Company, New York, 2013.
These indirect privacy violations model the “fishing expeditions” we will discuss in the Traffic Stop and Border Search scenarios.
Illinois v. Gates, 462 U.S. 213, 238–239 (1983) (“In its place we reaffirm the totality-of-the-circumstances analysis that traditionally has informed probable cause determinations. […] The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the “veracity” and “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. And the duty of a reviewing court is simply to ensure that the magistrate had a “substantial basis for… conclud[ing]” that probable cause existed.”).
United States v. Ramsey, 431 U.S. 606, 619 (1977) (“Border searches, then, from before the adoption of the Fourth Amendment, have been considered to be “reasonable” by the single fact that the person or item in question had entered into our country from outside. There has never been any additional requirement that the reasonableness of a border search depended on the existence of probable cause. This longstanding recognition that searches at our borders without probable cause and without a warrant are nonetheless “reasonable” has a history as old as the Fourth Amendment itself. We reaffirm it now.”).
New York v. Belton, 453 U.S. 454, 460 (1981) (“It follows from this conclusion that the police may also examine the contents of any containers found within the passenger compartment, for if the passenger compartment is within reach of the arrestee, so also will containers in it be within his reach.”).
Arizona v. Gant, 556 U.S. 332, 351 (2009) (“Police may search a vehicle incident to a recent occupant’s arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest. When these justifications are absent, a search of an arrestee’s vehicle will be unreasonable unless police obtain a warrant or show that another exception to the warrant requirement applies.”).
Arizona v. Gant, 556 U.S. 332, 352-53 (2009) (Justice Scalia concurring, “I believe that this standard fails to provide the needed guidance to arresting officers and also leaves much room for manipulation, inviting officers to leave the scene unsecured (at least where dangerous suspects are not involved) in order to conduct a vehicle search. In my view we should simply abandon the Belton–Thornton charade of officer safety and overrule those cases. I would hold that a vehicle search incident to arrest is ipso facto “reasonable” only when the object of the search is evidence of the crime for which the arrest was made, or of another crime that the officer has probable cause to believe occurred.”).
United States v. Arnold, 533 F.3d 1003, 1009 (9th Cir. 2008) (“Whatever “particularly offensive manner” might mean, this search certainly does not meet that test. Arnold has failed to distinguish how the search of his laptop and its electronic contents is logically any different from the suspicionless border searches of travelers’ luggage that the Supreme Court and we have allowed.”).
House v. Napolitano, CIV.A. 11-10852-DJC, 2012 WL 1038816 (D. Mass. Mar. 28, 2012) (“Rather, the search of House’s laptop and electronic devices is more akin to the search of a suitcase and other closed containers holding personal information travelers carry with them when they cross the border which may be routinely inspected by customs and require no particularized suspicion.”).
In sum, it is our conclusion that, after [Reid William Nottoli, the Defendant] was arrested for being under the influence, it was reasonable to believe that evidence relevant to that offense might be found in his vehicle. Consequently, the deputies had unqualified authority under Gant to search the passenger compartment of the vehicle and any container found therein (Gant, 129 S.Ct. at p. 1719), including Reid’s cell phone. It is up to the U.S. Supreme Court to impose any greater limits on officers’ authority to search incident to arrest. People v. Nottoli, 199 Cal. App. 4th 531, 559, 130 Cal. Rptr. 3d 884, 907 (2011).
Under the implied consent reasoning of the court in Townsend, Roden impliedly consented to the recording of his text messages on Lee’s iPhone. Roden voluntarily sent the text messages to Lee’s iPhone with the expectation that Lee would read them. In doing so, he also anticipated that the iPhone would record and store the incoming messages to allow Lee to read them. Cell phones, like computers, are “message recording device[s],” a fact that Roden must have understood as a user of text messaging technology on cell phones. See Townsend, 147 Wash.2d at 676, 57 P.3d 255. Accordingly, Sawyer did not violate Roden’s rights under the Act. State v. Roden, 279 P.3d 461, 466 (Wash. Ct. App. 2012).
It is this Court‘s view that if text messages were not afforded privacy protection, regardless of their form or method of discovery, the wall of protection provided by the Fourth Amendment would be rendered 10 feet high by 10 feet long—an impotent defense from unreasonable search and seizure. State of Rhode Island v. Michael Patino, C.A. No. P1-10-1155A, slip op. at 61 (R.I. Super. Ct. R. Crim. P. Sept. 2012).
In the context of policy-related privacy violations of smart phones, it is also worth noting the increasing importance of smart device video recordings in documenting abuses of authority by police officers thus increasing the temptation to violate privacy inappropriately to find these videos under the guise of searching for evidence as well as the potential temptation to delete them.
We would like to take up this theme in a future work, potentially focusing on a survey of workplace policies regarding smart devices and an analysis of common concepts.
Whatever “particularly offensive manner” might mean, this search certainly does not meet that test. Arnold has failed to distinguish how the search of his laptop and its electronic contents is logically any different from the suspicionless border searches of travelers’ luggage that the Supreme Court and we have allowed. United States v. Arnold, 533 F.3d 1003, 1009 (9th Cir. 2008).
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Roux, B., Falgoust, M. Information ethics in the context of smart devices. Ethics Inf Technol 15, 183–194 (2013). https://doi.org/10.1007/s10676-013-9320-7
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DOI: https://doi.org/10.1007/s10676-013-9320-7