Supreme Court Breakfast Table

The Supreme Court Should Protect Privacy Even When the Public Doesn’t Value It
An email conversation about the news of the day.
June 25 2014 5:32 PM

Supreme Court Breakfast Table

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The court should protect privacy even when the public doesn’t value it.

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This breakfast should be celebratory: The Supreme Court is back in privacy’s corner.

Photo by Miguel Medina/AFP/Getty Images

I agree with most of what you say about the cellphone rulings, Eric, but I think you may be missing the forest for the trees. For one thing, Wednesday’s decision—remarkable in its unanimity—was only superficially about cellphones. As Chief Justice John Roberts said, the term cellphone is “itself misleading shorthand; many of these devices are in fact minicomputers that also happen to have the capacity to be used as a telephone.” He added, “They could just as easily be called cameras, video players, rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps, or newspapers.” His observation reminds me of the New Yorker cartoon showing a bewildered schlemiel coming up to something resembling an Apple Store Genius Bar and asking sheepishly whether he couldn’t just buy one of those “things that you use to call up people.”

So the court’s decision was really about the brave new world of computers and automated data storage and data processing. Justice Elena Kagan last year remarked that privacy issues are “a growth industry for the court,” and it’s clear that the growth is fast, mostly because technology is changing quickly and is having so profound an impact on everything about the way people live—and think.

Last year the court issued a very different kind of decision, allowing police to take DNA samples from arrested suspects without a warrant. Along the way, the majority opinion, by Justice Anthony Kennedy, casually compared the collection of DNA to the taking of fingerprints so as to downplay the novelty of a really profound technological development. By contrast, Roberts does no downplaying in Wednesday’s case. He said the government’s argument, that searching all the data stored on a cellphone is “materially indistinguishable” from searching the photos and pieces of paper in a suspect’s pockets, was “like saying a ride on horseback is materially indistinguishable from a flight to the moon.” Exactly. The dig against too literal an attempt to apply in 2014 the “original meaning” of provisions written in 1791 is none too subtle either!

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In previous cases the court has ruled unconstitutional police attempts to use a GPS to track the movements of a car through the streets for a month, or to use a thermal imaging device to “see” through the walls of a house and search for a marijuana-growing operation. In those cases there was a fight over whether what the police were doing should even count as a “search and seizure,” as the Fourth Amendment defines that. This time, though, nobody argued that the cellphones weren’t being searched. Rather, this case was about police using old methods and techniques—like searches of what people have on them or with them when they’re arrested—to exploit the power of new technologies. They could learn all kinds of things about you from your phone that in the past they would undoubtedly need a search warrant (and, maybe, a coercive interrogation!) to uncover.

In his separate concurring opinion, Justice Samuel Alito says something that, Eric, you find yourself agreeing with: Alito says courts don’t know a lot about this stuff and implies they should leave the heavy lifting to Congress and maybe the state legislatures. Alito seems to think the key questions, about how much privacy people expect in their cellphones, are largely empirical ones. When courts talk about protecting people’s “reasonable expectations of privacy,” they do sound like they’re discussing things we could get at with really good public opinion surveys.

But the danger of thinking that way is that a sufficiently snoopy and clever government could gradually condition us to care less and less about privacy and all that it enables us to do and to be, until we’d pretty much expect that our entire lives would be an open book for the government to read at will. We’d then become a subservient people, not the freedom-loving and risk-taking people the Constitution at its best contemplates.

Courts are there, sometimes, to remind us of the core values at stake in debates over privacy and of how those values might gradually erode unless we’re on guard to protect them—exactly the way all nine justices did in this case. Justice William O. Douglas once wrote: “As nightfall does not come at once, neither does oppression. In both instances, there is a twilight when everything remains seemingly unchanged. And it is in such twilight that we all must be most aware of change in the air—however slight—lest we become unwitting victims of the darkness.” Douglas recognized that values like privacy aren’t lost suddenly but wither and weaken over time until we forget why we ever thought they mattered so much.

I’m ready to celebrate today’s reminder from the court about why the government’s position in this pair of cases was so scary. That the court repudiated it unanimously is cause for cheering. I say let’s add some Champagne to the OJ and vodka to the tomato juice!

Laurence H. Tribe is the Carl M. Loeb University Professor and professor of constitutional law at Harvard Law School. His latest book is Uncertain Justice: The Roberts Court and the Constitution (co-authored with Joshua Matz).

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