On the front page of the New York Times is a story about cellphones and the Constitution, which Orin Kerr at Volokh Conspiracy immediately dismembers as being “somewhat confusing.” In scholarly fashion, Orin explains how the articles has muddled the issues:
Unfortunately, the story rather confusingly switches back and forth between considering at least three different legal questions:While it’s true that the article is a hodgepodge of constitutional questions arising from the technology surrounding cellphones, smartphones, content retained on servers and cell tower tracking capabilities, he misses the point of the article, and the issues that matter to mortals.
1) What privacy protections the Fourth Amendment or statutes extend to the cell-location records generated by phone companies and stored by them, if the government comes to the phone company and wants the records of where the phone was located.
2) What privacy protections the Fourth Amendment or statutes extend to copies of text messages or e-mails that providers may have stored, if the government comes to the provider and wants to obtain copies of a suspect’s text messages or e-mails.
3) Whether the Fourth Amendment permits a warrantless search of the cell phone — and if so, how thoroughly — incident to a valid arrest.
There is no question of technology’s place in our lives, having become integral to all we do. There is similarly no question that the law has proven itself utterly incapable of either keeping pace with technology on an ad hoc basis or arriving at an overarching doctrine that suffices to address our constitutional rights in the face of ever-changing, ever-more intrusive, technology.
The article is muddled because the law is muddled. The article is muddled because the way we conduct our lives, our affairs, doesn’t conform to an academic division of issues as if the magic of our cellphones has entirely different legal consequences if we turn left instead of right, stand up or sit down, read the content of text messages on the screen or read them from the printouts of our cellphone carrier. And before anybody can figure out what we can rely on, technology has moved on to something entirely new and different, leaving us perpetually in doubt and the law perpetually a few steps behind.
What distinguishes the issue when it comes to cellphones is that everyone has one, whether it’s the latest and greatest from Apple or a Jitterbug. Television commercials tout what they can do for us. No mention is made what they can do to us. And given the abject confusion and judicial state of flux, no one can say with any certainty whether these devices that reflect nearly every aspect of our lives are private or a reservoir of enormously personal information just waiting for law enforcement to access.
As technology races ahead of the law, courts and lawmakers are still trying to figure out how to think about the often intimate data that cellphones contain, said Peter P. Swire, a law professor at Ohio State University. Neither the 1986 statute nor the Constitution, he said, could have anticipated how much information cellphones may contain, including detailed records of people’s travels and diagrams of their friends.
“It didn’t take into account what the modern cellphone has — your location, the content of communications that are easily readable, including Facebook posts, chats, texts and all that stuff,” Mr. Swire said.
The Times article notes that a Senate committee will consider changes to the law.
Remember 1986? Personal computers were first breaking into the office market, with those fine ’88’s and their 10 meg hard drive that “nobody could ever use up that much memory,” with 3.5″ floppies Cellphones by a guy name Motorola looked like WWII walkie talkies, took up half your briefcase (those were leather bags with handles that men used before knapsacks) and cost $12 a minute to use, whether you reached another phone or not. Nobody even dreamed of a 1200 baud external modem. Okay, maybe they dreamed.
The issue will attract attention on Thursday when a Senate committee considers limited changes to the Electronic Communications Privacy Act, a 1986 law that regulates how the government can monitor digital communications. Courts have used it to permit warrantless surveillance of certain kinds of cellphone data.
A proposed amendment would require the police to obtain a warrant to search e-mail, no matter how old it was, updating a provision that currently allows warrantless searches of e-mails more than 180 days old.
Those were simpler times, and came up with simpler solutions. What they failed to come up with is a comprehensive statute that would assure that a Fourth Amendment, conceived for the physical world, would fulfill our needs for privacy from governmental intrusion in a virtual world.
The courts have attempted to address technology by analogy to its IRL decisions, which is a game that hasn’t played out well.
Orin has argued for what he calls “technology neutral” doctrine, where the same old Fourth Amendment search and seizure law that gave us the automobile exception becomes the foundation for our constitutional rights going forward. Technology be damned, whoever makes the analogy that a judge finds snappier wins the day, and with it, our rights. Or perhaps, whoever writes a law review article that supports a judge’s preconceived notion of an appropriate outcome gets a citation (which can be turned in for cool prizes by lawprofs).
Judges across the nation have written tomes about whether a cellphone is akin to a “container” — like a suitcase stuffed with marijuana that the police might find in the trunk of a car — or whether, as the judge in the Rhode Island murder case suggested, it is more comparable to a face-to-face conversation. That judge, Judith C. Savage, described text messages as “raw, unvarnished and immediate, revealing the most intimate of thoughts and emotions.” That is why, she said, citizens can reasonably expect them to be private.
Orin is right to characterize the article as “confusing,” though his qualifier of “somewhat” seems a bit tepid. It’s a mess because the law is a mess. Neither court, cop nor individual can count on constitutional protection of our most pervasive and private information, and that’s not good enough for a society that purports to have a Constitution that was enacted to assure us of privacy from the government.
Will the Senate, a political body trying to thread its way between deeply conflicted purposes combined with a heavy dose of self-interest, come up with change that protects us? I wouldn’t bet on it. But the courts have made a total disaster of things, if one adheres to the idea that we have a right to privacy, with the support and comfort of clear thinking academics.
At least the New York Times front page article will put the mess in front of a lot of coffee drinking folks, who might come to grips with the issues raised by our beloved smartphones. Maybe some of them will care enough to realize that whether the newest iPhone has an earphone jack on the top or bottom isn’t their biggest issue. Maybe it will dawn on the public that if they don’t start paying attention to what their phones are giving away, they won’t have any privacy left.
Update: As if on cue, a post from Grits for Breakfast brings a ruling out of Amarillo Seventh Court of Appeals, providing this:
I leave y’all with this quote from the opinion:And it took a court to decide this. We’re doomed.
While assaults upon the Fourth Amendment and article I, § 9 of the United States and Texas Constitutions regularly occur, the one rebuffed by the trial court here is sustained. A cell phone is not a pair of pants.