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Smartphones, Smart Ruling

One of the most durable legal doctrines is, the idea that courts should follow legal precedents in the interest of stability and predictability of law. But some precedents, especially precedents in Fourth Amendment search and seizure jurisprudence, become meaningless when technology intrudes.
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Technology changes everything, including the influence of Supreme Court precedents. One of the most durable legal doctrines is stare decisis, the idea that courts should follow legal precedents in the interest of stability and predictability of law. But some precedents, especially precedents in Fourth Amendment search and seizure jurisprudence, become meaningless when technology intrudes, and then older and pristine bright-line rules have to give way.

In several recent Fourth Amendment cases that implicate new technologies, the government has argued that technology changes nothing, that the quality and quantity of the government's intrusions into privacy should not alter the rule or the result. So, for example, the government argued that its bulk telephone metadata program, operated by the National Security Agency, was a permissible investigative technique because it was a logical extension of the Supreme Court's pen register decision, which allowed the government to collect telephone numbers dialed by users. The court reasoned that since the telephone data is known by the company that processes and charges customers for the calls, the customer has no reasonable basis to expect that the data is private. But as Judge Richard Leon observed in a historic ruling, compared with the discrete and limited pen register device, the massive, indefinite, and historical collection of millions, probably billions, of present and past telephone calls, loaded into a vast database and retained by the government perhaps forever, or as long as the U.S. is fighting terrorism, is nonsensical and dangerous.

It may be that the government's position in the telephone metadata case is logically correct, however perverse. If, as the government argued, it is authorized to collect some telephone calls for a discrete period of time, as the pen register precedent holds, then the government should be allowed to collect all telephone calls forever. The government's logic is reminiscent of Benjamin Cardozo's famous warning to judges about the "tendency of a principal to expand itself to the limit of its logic."

The government's expansive logic similarly was employed when investigators installed a GPS device on the defendant's car and tracked him for a month. No warrant was obtained for the intrusion, but the government claimed that no warrant was necessary. The Supreme Court, in a landmark ruling, rejected the government's argument. As in the metadata case, the government argued that an earlier Supreme Court ruling squarely controlled a 30-year-old precedent in which the government put a beeper on a car and tracked its movements for a single short trip. Logically, if a motorist has no special privacy from being watched electronically by the government for a day, why should she have any special privacy for a week, or a month? But as Justice Sonia Sotomayor pointed out in her influential concurring opinion, technology changes dramatically the constitutional rules for privacy. The fact that the government can watch you for a finite moment in time does not give the government the right to watch you forever. The idea that we give up a certain amount of privacy when we appear in public or convey information to third parties is an ill-suited norm for the digital age, in which technology gives government the power to secretly watch people constantly, always, during both important and mundane activities, and to obtain precise records of all of these activities, and to store and mine these records indefinitely -- forever.

This week's unanimous cellphone search ruling by the Supreme Court, in an opinion by Chief Justice John Roberts, seems almost anti-climactic, or at least an easy call. According to the Supreme Court precedent, which the government relied on aggressively, the immediate search of a defendant and his possessions contemporaneous with his arrest is reasonable and requires no warrant. The fact that the property searched happens to be a cellphone should not matter, the government claimed, pointing to the well-settled doctrine of "search incident to arrest," which is based on two search rationales: The person arrested might have a weapon he could use to harm the arresting officer, or the arrested person might try to destroy evidence in his possession. Indeed, as the government argued, a cellphone might contain incriminating evidence that, upon arrest, could be destroyed, so, logically, a search of the cellphone is within the rule. In fact, in a leading case relied on by the government, there was no evidence that could be destroyed; the defendant was arrested for a traffic infraction. And the defendant could not gain access to the package that had already been seized by the police, so there was no realistic threat to the officer's safety. No matter, said the Supreme Court. The arrest itself justified the immediate search.

But technology changes everything, the court unanimously concluded, in rejecting the government's arguments. The court made the point succinctly, and powerfully. Cellphones are "a pervasive and insistent part of daily life," indeed "an important feature of human anatomy." More than 90 percent of American adults own a cellphone, the court noted. Because of its immense storage capacity, cellphones are different from cigarette packages, wallets, briefcases, and even diaries possessed by the person arrested. A cellphone "contains the sum of an individual's private life." The court showed a close familiarity with cellphone technology, describing "gigabyte storage capacity" (the smartphone capacity of 16 to 64 gigabytes, and 16 gigabytes translates into millions of pages of text, thousands of pictures, and hundreds of videos); "apps" (the average smartphone user has 33 apps, "which can form a revealing montage of the user's life," noting as well the expression "There's an app for that"); "cloud computing" (the capacity to display data stored on remote servers); and "remote wiping" and "data encryption."

The Supreme Court rejected the government's reliance on precedent and its arguments about the dire consequences of the court's decision on the ability of the government to fight crime. The court pointed out that the government wasn't being deprived of evidence, only being fored to accept the inconvenience of obtaining a warrant to search the phone. Also, if there are exigent circumstances, the government can make a warrantless search. But as in the metadata and GPS technology cases, in balancing the government's interests against the near-Orwellian intrusions into privacy, privacy wins, and even when the logic of earlier Supreme Court precedents might suggest otherwise.

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