Monday, November 26, 2012

Law Enforcement and Digital Devices: Cellphone Law Lacks Court Consensus As Congress Legislates Years Behind the Times and Every Judge Hacks Out Algorithmic-Like Solutions in His or Her Judicial Lab

Is modern law and jurisprudence failing in fulfilling its obligation to provide society with clear and understandable norms?

Take a look at Legal Consensus of Warrantless Cellphone Searches Is Elusive at the New York Times by Somini Sengupta.

Modern law in its approach to the digital era looks more and more like a cookbook of serendipity recipes, and, much like patent law, has become law by trial and error, rather than law by intelligent design. I say that as a dynamic legal "evolutionist" and not as a dogmatic legal "creationist" or inert "originalist". The world is constantly in motion and experience shows that law must follow, slowly as it does, but follow it must.

As a political centrist, and looking objectively at our "Facebook" world, the reasonable expectation of privacy is no longer what it once was and should most certainly be interpreted to enable prudent and sensible law enforcement.

Having law enforcement officials obtain search warrants to search cellphones of people lawfully arrested is an unnecessary application of antiquated legal principles to modern digital devices for which those principles were never intended and where they do not serve well at all.

Cellphones may be in private ownership, but they are capable of broadcasting worldwide. A normal cellphone operator can locate its customers to within a few feet at any time, and everyone knows that everything can be recorded and probably is. An expansive "expectation" of privacy for digital devices vis-a-vis law enforcement officials is rather far-fetched.

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