Wireless Communications Essay

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It is no longer the dawn of wireless communications; indeed, wireless communications is simultaneously a mature industry and in its infancy. There are numerous ethical issues associated with criminal law and wireless communications in the Digital Age, among them ethical issues arising from wireless  communications in criminalizing  conduct, facilitating commission of crimes, detecting crimes, and investigating and prosecuting crimes.

A great deal of arguably  criminal  behavior before  the Digital  Age took  place in private, largely undetectable and undetected; however, in the Digital Age very little is private any longer. Two same-age children playing “show me yours and I’ll show you mine,” formerly a private and seldom discovered act, has morphed into sexting in the Digital Age, with both children leaving an indelible trail of evidence on their cell phones. Similarly, pornography, a solitary and largely private act before the Digital Age, has now become an epidemic online, with distributors and customers both leaving the same type of indelible evidence of the acts along the way.

With the advent of wireless communications and Web-enabled smartphones, what once were private acts have now become obvious and public crimes. Saddling a youngster with a sexting conviction, and denominating that youngster as a sex offender, is just one of the overcriminalization problems engendered by wireless communications in the Digital Age.

Facilitating Criminal Behavior

A child pornographer can set up a Web log or chat room and distribute the product more widely and quickly than ever before. Drug dealers can hole up in a motel room and market the drugs via cell phone without ever having to leave the room. A drug buyer can text “2-K-4-75” to the dealer and set up a drug purchase. Lookouts can phone the accomplices inside the bank when law enforcement  arrives. A man can use his smartphone to hack into his neighbor’s baby monitor and watch as his neighbor’s baby sleeps. On the App Store, one can purchase smartphone apps that can track former girlfriends or coworkers. Thieves can capture cell phone signals and the personal information, credit card numbers, Social Security numbers,  and mothers’ maiden names that  individuals  sometimes  thoughtlessly transmit wirelessly. In addition to these examples, in the future there will most probably be even more ways that criminals will use wireless technologies to facilitate their crimes.

Detecting Crimes and Tracking Suspects

When a cell phone is activated, the phone is constantly sending out a signal to nearby cell towers, informing the towers and cell service providers precisely where that cell phone is located. It is a simple matter for law enforcement to reach out to wireless service providers and obtain historic cell tower records without a warrant. Similarly, when a user downloads a smartphone app, during the initialization process the user, often absentmindedly, consents to disclose the smartphone’s location to the app provider. That consent allows the app to compute directions or find the nearest store or display the local weather. When the user consents to releasing the location to the app provider, that user has consented to a third party knowing the user’s location. Law enforcement then simply asks that app provider to disclose the user’s location, historically or in real time. Tracking a child abduction suspect using cell tower data obtained under a search warrant is one thing, but routine warrantless tracking  of any person  of interest using cell phone emanations is quite another.

Through the USA PATROIT Act, the National Security Agency (NSA) has been capturing and storing cell phone data and Internet search engine queries for years so that it can later search through that mass of data for relevant evidence of terroristic acts and other crimes. The self-protective governmental response to an external terror attack has accelerated the need for all U.S. citizens to think through the appropriate places to draw the line between what is private and therefore inaccessible to law enforcement, except by a formal search warrant based on probable cause, and that which is public and therefore available to law enforcement on a much lower showing or on no showing at all.

Investigating/Prosecuting Crimes

Although the Digital Age has facilitated countless crimes, that technology comes with a price for the criminals: Every criminal act performed or facilitated with a wireless communications device has left behind a digital footprint for law enforcement to find. Every e-mail or text message transmitting child pornography resides on the senders’ and recipients’ computers or other digital devices, and copies are also resident on the wireless or Internet service providers’ servers. With an Internet protocol (IP) address, law enforcement can identify the location and user of the wireless device that facilitated that criminal act. So, affirmative criminal acts committed  using wireless devices are quite easy to detect and investigate.

Those text messages and e-mails are also simple for law enforcement to obtain, often without the need for a formal or specific search warrant. For example, in most states and most federal circuits, if a person is arrested with a smartphone in his or her pocket, the arresting officers can search the memory contents of that smartphone without a search warrant, without probable cause, and even without reasonable suspicion. And in most jurisdictions all that is needed to secure a great deal of data from wireless communications providers is a simple administrative subpoena. In the Digital Age, when so much of individuals’ previously private information is passed through third parties, such as wireless and Internet service providers, individuals cannot challenge the seizure of that data because they freely consented to let that third party possess that so-called private data. Many have argued for abolition of the third-party consent loophole  in Digital Age circumstances, but that is likely a long way off.

One might compare  the European approach with the American approach to Internet and cell phone privacy. In the United States, for the most part, if technology has enabled law enforcement to seize that formerly private data without a warrant, then law enforcement may do so. In Europe, however, the governments have united to impose very strict standards on what data law enforcement can obtain and what data service providers can release without a judicially issued warrant. Suffice to say, it is just about a dead heat at present. As technological advancements move wireless communications to the next level, both the criminals and law enforcement appear to quickly find ways to turn those advancements in their favor.

More Questions Than Conclusions

The communications individuals used to conduct in private are now conducted using their laptops and smartphones, sending data through wireless and Internet service providers. These devices are efficient, effective, reliable, and fast. What individuals used to store in locked file cabinets in their homes they now store in the Cloud or on flash drives or on their smartphones. In the Digital Age, should individuals treat their smartphone memories as if they were locked file cabinets in their homes; that is, should they require a judge-issued search warrant before law enforcement agents can search a smartphone’s memory or before they obtain call records, call content, text messages, or search queries from wireless and Internet service providers? Should the United States change the dividing line between what is private and what is public while the country  is waging a global war on terror? Should courts, which consider cases one plaintiff at a time, make these decisions, or are legislatures and their hearings a far better venue for quick and reasoned reactions to technological advancements?

The question,  in the Digital Age, should be: What are individuals, as a society, willing to treat as private, and what are they willing to treat as public, without regard to whether each item is technologically feasible for law enforcement  to obtain. The answer cannot come soon enough.

Bibliography:

  1. Beckerman-Rodau, Andrew. “Ethical Risks From the Use of Technology.” Rutgers Computer and Technology Law Journal, v.31 (2004).
  2. Byrne, James and Gary Marx. “Technological Innovations in Crime Prevention and Policing: A Review of the Research on Implementation and Impact” (2011). https://www.ncjrs.gov/pdffiles1/nij/238011.pdf (Accessed November 2013).
  3. Lee, Timothy B. “Everything you Need to Know About the NSA’s Phone Records Scandal.” Washington Post (June 6, 2013).
  4. MacLean, Charles E. “Katz on a Hot Tin Roof: The Reasonable Expectation of Privacy Doctrine is Rudderless in the Digital Age Unless Congress Continually Resets the Privacy Bar.” Albany Law Journal of Science and Technology, v.23 (2013).
  5. Sembok, Tengku Mohd T. “Ethics in Information Communication Technology.” United Nations Educational, Scientific and Cultural Organization (UNESCO) Regional Unit for Social and Human Science in Asia and the Pacific (2003).
  6. http://www2.unescobkk.org/elib/publications/ethic_in_asia_pacific/239_325ETHICS.PDF (Accessed November 2013).
  7. Trope, Roland and Sarah Jane Hughes. “Red Skies in the Morning—Professional Ethics at the Dawn of Cloud Computing.” William Mitchell Law Review, v.38 (2011).

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