Your Cell Phone Is More Incriminating Than You Think

I have some beef with the "nothing to hide" response to the conversation about online privacy that Edward Snowden started when he blew the whistle on the NSA. Admittedly, I haven't ditched my Gmail account or iPhone in favor of an encrypted messaging service or anything, and yeah, that's partly because I'm not plotting any illegal schemes over email. But we can't predict what will happen in the future, and increasingly, we can't erase the digital record of what happened in the past.

These days, that record is more thorough and robust than ever before, thanks to the ubiquity of mobile phones. The way we communicate over the phone is often more candid, personal, and truthful than on a computer, and we're sending texts and snapping photos with the gadgets glued to our sides around the clock. As GigaOm's Jeff John Roberts pointed out today, in a court of law, the cell phone is the new smoking gun.

Roberts reminds us that even when you "delete" content on your phone, it doesn't actually disappear. It's stored on the device's hard drive, for one, probably also backed up on your computer, or in the cloud, or possibly in the records kept by your phone company. There are steps to take to permanently wipe out all that data, but few people bother to take them.

Until there is something to hide. At that point—in the unhappy case you find yourself lawyering up and facing criminal charges—trying to delete data off your phone is not just futile, it’s potentially illegal; it can be seen as tampering with evidence. Instead, suspects are required to hand over devices for lawyers and mobile forensics experts to scan through looking for incriminating bits of information.

Now you may be thinking, alright, but I'd never be in that situation because I'm an upstanding citizen that obeys the law. Okay, but have you ever been arrested? Might there be a chance you find yourself in the wrong place at the wrong time someday right when the cops show up? Is that, like, totally outside the realm of possibility?

I ask because in most US states, police are free to search through your cell phone, without a warrant, as soon as they make an arrest—just like they can dig through your pockets to look for any signs of law-breaking. And if there's reasonable suspicion that evidence of a crime is sitting in your phone, cops are at liberty to scan through your personal data even if they're just pulling you over and no arrest has been made.

This is something privacy advocates are fighting against. The Supreme Court has been asked to hear two cases on whether warrantless cell phone searches violate Fourth Amendment protection against unreasonable search and seizure. Other states, most recently Massachusetts and New Jersey, are passing laws to require that police obtain a warrant before tracking a suspect’s cell phone location data.

So maybe you recently texted a buddy a picture about your shady drunken shenanigans last weekend, and now you’re thinking twice about having that particular communication floating in the internet ether. Or maybe you're a perfect angel. Regardless, it's the principle of the thing that's the point: Ignoring the potential, unforeseen ramifications of the trove of permanent data we're sending into cyberspace is shortsighted.

Mobile phones are just one example—there are also social media platforms, web browsers, computer hard drives, and cloud storage all amassing a pile of messages, images, and digitized records documenting your actions. And wiping your records is harder than you might expect.

Considering this, it's no surprise to see the rise of ephemeral and anonymous messaging over the last six months or so. However, even this trend isn't a privacy panacea. Some of the "self-destructing" data apps, most notably SnapChat, don't actually delete the content.

Others, like ephemeral data apps created from The Pirate Bay co-founder Peter Sunde and Silent Circle, which make a point not to store content on devices or on the company servers, lest law enforcement comes knocking, have yet to break out of cypherpunk circles. And my guess is they won't—not until enough people who thought they had nothing to hide wind up getting thrown in jail, or slapped with hefty fines, because someone dug up an old text message.