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We need a digital right to remain silent

The police should not have access to the most intimate corners of our lives

July 17, 2020 - 2:53pm

Imagine you’ve been violently attacked. When you report it to the police, they say they will only take the case to court if you agree to them searching your house from top to bottom — your diary, your address book, your underwear drawer — to check there is nothing that contradicts your version of events. Would that put you off reporting crimes in future? Don’t the police need a warrant to search a home?

Now think how much of your life is on your mobile phone, and how much of the lives of your family, friends, workmates. How happy would you be to let the police download all of that? Photographs, text messages, location records, content from apps you thought were encrypted, anything that might be used in court to undermine your credibility as a witness.

Reporting a sexual assault in the last few years might routinely have led to such a digital strip search. Some women reporting rape were told their cases could be dropped if they refused access to all their personal digital data.

But a new Court of Appeal judgment has laid down new guidelines. Alleged victims of sexual assault will no longer be asked to give blanket consent for police to download everything from their phones. Now, police or prosecutors will have to request specific information. This is an improvement, and follows several years’ work by campaign groups, and a recommendation from the Information Commissioner.

But it only applies to complainants in sexual offences. What if, instead of being a victim of crime, you are wrongly accused of committing one? Again, the police would not normally expect to search your home without a warrant, but they could plug your phone into a ‘Self Service Kiosk’ and extract the most private details of your life, and other people’s lives, in minutes.

Of course such data has been used to solve crimes, and also to exonerate the innocent. One rape trial collapsed when, among the text messages taken from the alleged victim’s phone, were exchanges with the accused that backed his version of events. Drug dealers and murderers have been found guilty after data from their phones and other mobile devices was used in evidence.

But, just as we expect the police to have a clear legal framework for physical searches, whether of property or vehicles or a person’s body, we should expect more than a consent form to govern extracting data from our digital devices. Any of us could find ourselves wrongly accused. Most of us leave traces of our own lives on other people’s phones, in the form of photographs, messages and contact details. We expect privacy, not transparency, as the default.

Police powers should be proportionate and accountable. The laws that govern them need to catch up with the windows that mobile phones open into the most intimate corners of our lives. We need a digital Right To Remain Silent.


Timandra Harkness presents the BBC Radio 4 series, FutureProofing and How To Disagree. Her book, Technology is Not the Problem, is published by Harper Collins.

TimandraHarknes

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ralph bell
ralph bell
4 years ago

I agree that foregoing all private mobile data to the police should not be the baseline, but relevant digital data pertinent to the case should be allowed to be viewed by legal teams, such as text/social media or verbal conversations. A number of cases have show the importance of this modern means of communication in establishing the facts of the accusation.

William Cameron
William Cameron
4 years ago
Reply to  ralph bell

The problem is that the essential evidence is often not between the accuser and accused- but between the accuser and third parties-(I had a great time with Fred last night sent to a friend next morning ) and how do you find that without looking at everything ? (Obviously only of recent date ?)

JR Stoker
JR Stoker
3 years ago

The article is not suggesting, I think, that such evidence should not be examined, but that any such right to examine needs to be very carefully and tightly managed because a general right gives the police an ability to look at other things. The police I would think would also welcome clarity as to their rights in this area and to enable such searches to be conducted in a way that could then avoid subsequent accusations of breach of privacy

William Cameron
William Cameron
4 years ago

Anyone accused of a crime must be able to have full access to anything that assists their defence.
Imagine I am accused of stealing your teapot. You have sent a message to your friend saying you are giving me your teapot. You then accuse me of stealing your tea pot. Should the police look at your phone ?

Mark Shelly
Mark Shelly
3 years ago

“One rape trial collapsed” I think that you find that many 1000’s of rape cases have collapsed due to digital searches. I think the full downloading of digital information may have been too much. However I think the the people behind this are usually the ones who will later press for complete privacy for the complainant, similar to the call for rape cases to be decided by a judge and two experts (presumingly in gender/sex/feminist studies) and limiting the type of evidence allowed in the defence for the accused. Just look at the ridiculous out cry when Ched Evans was found not-guilty. Just image being accused of rape and finding that the accuser’s lawyer have free reign over the evidence in the prosecution and your defence is severely limited; and the case is decided by, say, Harriet Harmen, Jess Philips and Vera Baird. It is coming.

2yyswise4u
2yyswise4u
4 years ago

You’re not thinking things through lass , put a few more year of life in that silly head of yours and you’ll come up with a totally different picture . Yapping and yorping like a dog sat on a rusty nail about your own security & that of others because it is too stupid to move won’t be of much use if your laying in the gutter with both legs blown off by a terrorist bomb or your bleeding badly (if you’re still alive ) because some nutter had decided they don’t like your brand of life so they have intentionally & viciously stabbed you .

Of course the police & security forces should have access to every bit of evidence available to try & prevent or apprehend criminal & preventing them from operation . Having them able to with a court order look at all manner of communications is the right of everyone who wants to live in a viable society .

Re your idea of having a tacky smutty sex life on & off line and making a record of it etc. then getting raped etc . or accusing someone of doing such a thing , protect yourself beforehand . ( Yes it’s not uncommon for insecure / vengeful people to make false representations ) .

If you don’t ever want the likelihood of your smutty & silly emails & texts
to be revealed scripted or encrypted it is so simple ……….Don’t send them in the first place or say anything on a telephone /cell phone .

Actually get off your butt and go & meet the person . You’ll benefit from it in many ways by actually meeting people and getting over your insecure self

JR Stoker
JR Stoker
3 years ago
Reply to  2yyswise4u

Always useful to have a polite, reasoned, and thoughtful contribution about human rights and a secure but free society.

Dan Poynton
Dan Poynton
3 years ago
Reply to  2yyswise4u

I think she’s thinking things through very wisely – digital dystopias of total surveillance loom, far more life threatening than anything terrorism has dished up to us so far.

Sharon Overy
Sharon Overy
3 years ago

Hundreds of convictions had to be reviewed as possibly unsafe, because the defence was denied access to exculpatory evidence by the police, under orders to increase the conviction rate.

It’s going to happen again now, but you don’t care. It’s only men, eh?

Dan Poynton
Dan Poynton
3 years ago

Beautifully expressed – succinct and devastatingly logical. And pertinent as hell in the current Black Trans Lives Matter, oops sorry, Black Lives Matter era, where “Silence is Violence”.