A quick preliminary read of the unanimous (!) decision on cellphone privacy today reveals that despite the fact that we loooove to make fun of the justices’ technological cluelessness (Justice Stephen Breyer confessed at oral argument in the cellphone cases that he didn’t know what kind of phone he had because he couldn’t log in to it—because he didn’t know his own password), they really do understand a thing or two about privacy. Or, as Eric wisely cautions, a thing or two about their own expectations of privacy. On balance, perhaps even if the justices can’t keep up with the minute-to-minute changes in our devices and how we use them, they can fully appreciate that the contents of our desks and our diaries have now migrated to our phones.
The fact that the court comprehends this truth is captured almost perfectly by the chief justice’s opening contention that “these cases require us to decide how the search incident to arrest doctrine applies to modern cell phones, which are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy.” Toward the end of the opinion, Roberts quotes Judge Learned Hand’s long-ago warning that it is “a totally different thing to search a man’s pockets and use against him what they contain, from ransacking his house for everything which may incriminate him.” The chief justice writes that “a cell phone search would typically expose to the government far more than the most exhaustive search of a house.” Done and done.
As Eric notes, the institutional worry about what the Framers would have thought of my Nokia has almost evaporated here. The fact that the decision is unanimous is quite remarkable if you compare it with the splintered doctrinal approaches in other technology cases, like the Great GPS Throwdown of 2012. Where have you gone, tiny constables! Here we see the chief justice struggling with the fact that the Framers couldn’t have imagined the existence of even a flip phone (now largely to be found next to the fossils warehoused at the Smithsonian; one of the parties in these cases was arrested in the technological Paleozoic epoch of 2007).
Roberts writes that there is a difference between searching a phone for items that can harm an officer—say a hidden razor blade—and rooting through all the data contained on the phone itself: “Once an officer has secured a phone and eliminated any potential physical threats, however, data on the phone can endanger no one.” Roberts rejects the argument advanced by the state of California that the phone itself could be used to endanger the police “for example by alerting officers that confederates of the arrestee are headed to the scene.” He goes on to reject the police concern that phones should be seized to prevent the destruction of evidence through either remote wiping or data encryption, writing: “We have been given little reason to believe that either problem is prevalent. The briefing reveals only a couple of anecdotal examples of remote wiping triggered by an arrest.” Cue obligatory reference to the Faraday bags, which he describes as “essentially sandwich bags made of aluminum foil: cheap, lightweight, and easy to use,” and allow the cops to preserve the data on a phone.
Maybe the most interesting part is where Roberts tries to analyze why cellphones have such different implications for privacy. Eric, here I think there are at least some answers to your questions about what the heck the nine justices know about how the rest of us think about privacy. As Roberts envisions it: “First, a cell phone collects in one place many distinct types of information—an address, a note, a prescription, a bank statement, a video—that reveal much more in combination than any isolated record.” Second, “a cell phone’s capacity allows even just one type of information to convey far more than previously possible. The sum of an individual’s private life can be reconstructed through a thousand photographs labeled with dates, locations, and descriptions.” And “third, the data on a phone can date back to the purchase of the phone, or even earlier.” In Roberts’ view, the phone is different from the bits of paper and photos floating around in your wallet because it aggregates different types of information, it aggregates huge amounts of information, and it preserves all that information across long stretches of time.
Roberts also has a lengthy explanation of what the government can learn from the apps we install:
There are apps for Democratic Party news and Republican Party news; apps for alcohol, drug, and gambling addictions; apps for sharing prayer requests; apps for tracking pregnancy symptoms; apps for planning your budget; apps for every conceivable hobby or pastime; apps for improving your romantic life. There are popular apps for buying or selling just about anything, and the records of such transactions may be accessible on the phone indefinitely. There are over a million apps available in each of the two major app stores; the phrase “there’s an app for that” is now part of the popular lexicon. The average smart phone user has installed 33 apps, which together can form a revealing montage of the user’s life.
This reads a bit like a preview of the reasoning that will be someday deployed in a future case about National Security Agency surveillance.
You are right, Eric, that the nine justices of the high court are not all that well-situated to understand how each of us thinks about our own privacy. But the court didn’t have to calibrate a perfectly coherent zone of privacy; it merely had to do what it did, which is say, “Not in here, not without a warrant.” I am not sure that is based solely on how the nine use their own phones, by the way, especially given that Breyer is probably still trying to hack into his as we type. I think it’s based on a reasonable conclusion that we are entitled to an expectation of privacy in devices that are, as Roberts writes, “in fact minicomputers that also happen to have the capacity to be used as a telephone. They could just as easily be called cameras, video players, rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps, or newspapers.”