Supreme Court Ruling on Cell Phone Privacy

The Supreme Court is kind of a strange thing, when you stop to think about: 9 people in black robes deciding major aspects of how you live your life, using as a guide an almost Jesuitical reading of a document written over 200 years ago. The amazing thing is that it generally works, and for the most part, we’ve agreed to peacefully abide by their rulings.

There are exceptions to its working. The Court, perhaps understandably, has been slow to understand the role and the use of technology, particularly mobile tech. After all, most of their rulings are based on precedent, and we’re dealing with unprecedented technology. In the recent United States vs Jones, for example, the majority decided that GPS tracking was ok, based on a 1973 law regarding trespassing.

So there wasn’t a whole lot of optimism earlier this week when the Supremes got ready to hand down a decision in Riley v. California, as well as United States v. Wurie, regarding whether police or the government could search cell phones without obtaining a warrant. (The decisions dovetailed each other, and we’ll focus mostly on Riley). But the court surprised all watchers. For one thing, they passed a unanimous decision, something increasingly rare in an ever-more-partisan court. The big surprise was that they landed square on the side of the 4th Amendment, stating that you do need a warrant. Suddenly, your smartphone was secure, even from the police. Will this be a huge change in how you use your cell phone?

The Supreme Court (Wiki)
The 9 Justices who are often tasked with thinking about hip, cutting-edge technology.

What Riley Was All About

Riley was an exciting case for judicial nerds- and they do exist- because its particulars were so interesting. First of all, the titular Riley was not terribly sympathetic. Neither was Wurie. He was a criminal whose crimes were caught based on a warrantless search. The initial instinct is to think, “Well, forget that guy,” and be glad the police caught him. But it is in the most unsympathetic cases that we get some of the most important decisions. After all, principles are only principled if you defend them when it isn’t easy.

So the Court looked at the facts, but more importantly, looked at the role that technology now plays in our lives. For a long time, police treated smartphones as a novelty, essentially, something that wasn’t worthy of protection. It was also treated as if all its contents were lying out in the open. The Court decided that wasn’t the case.

To explain that a little, if there is something illicit in the open – say you get pulled over and you have a smuggled panda in the back seat of your car – the police can arrest you, even though you weren’t initially pulled over for panda smuggling. But, with some exceptions, if they can’t see it, they can’t search for it without a warrant. (“Probable cause” is the main exception, like if they hear the mournful, homesick lowing of a baby panda in your trunk.)

Now your smartphones and other mobile devices have protection. They can’t just grab your phone and start flipping through it in the hopes of finding something incriminating. Even if you don’t have anything incriminating, do you really want the police to be able to find out literally everything about yourself? Your pictures, what sites you go to, texts you’ve sent, the kind of apps you have – all of that is suddenly in the hands of strangers. Now, though, they need a warrant, which means they have to make a case to a judge that they have enough cause to justify a violation of your privacy.

This doesn’t hamstring police. Warrants are not that hard to get, especially if there is enough cause. (And, in a neat twist, they are even easier and quicker to get thanks to mobile tech). This isn’t going to be used to put criminals back on the street. The important thing for most citizens is that they are safe from inspection by a random cop or government official who is bored and wants to irritate you.

The ramifications

I’ll leave more of the legal analysis to those who do a much better job of it than I do. I recommend the brilliant Dahlia Lithwick at Slate (and her incredible colleague Emily Bazelon), and of course the invaluable SCOTUSblog, who call Riley the first step in “a digital Fourth Amendment.” While that sounds like just a catchphrase, it is really important. It means the law is beginning to catch up with how we live.

The heart of the ruling was that we have our lives on our smartphones and tablets. Just by looking through it, the government could know your religion, your diet, who you’re sleeping with, who your friends are, who their friends are, where you go every day, what you buy – just about everything. These are things you have a right to keep to yourself, but they were exposed by our reliance on smartphones and the slowness of the law. Slow laws are a good thing; you don’t want reactionary laws drawn in the heat of the moment. But in this case our technology has moved so quickly that the law has been lapped, and was at a huge disconnect with the way we live our lives.

We talked about how this affects you. If you are generally a law-abiding sort of person, you don’t have to worry about being searched. You can feel free to put more and more of your information on your phone, to really, fully make it an extension of yourself (being sure to use all security measures possible). Essentially, and not to put too dramatic a point on it, Riley grants smartphones the same rights as your inner life. It ensouls them, to use an old term.

So the ruling isn’t just about technology. It’s about us. It has codified the notion that we are actually becoming more and more connected with our devices, and that when we pour ourselves into them, we extend to them a set of rights.

Down the line, this could be used to offer a legal regime for the Singularity. The Court is saying that, legally, your smartphone is as much a part of you as your house or car or really your own brain. So when we start to blur that line even more, there is already protection. After all, you wouldn’t want to upload your brain onto a computer if anyone could look at it. With Riley, we’ve taken a step toward that. For once, the law hasn’t just caught up with technology, it has paved the way for a new frontier.

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