In an op-ed in the New York Times, long-time Supreme Court reporter and commenter, Linda Greenhouse, takes up the fundamental question raised in the two cases granted cert, United States v. Wurie and Riley v. California, in which the Court will consider whether cellphones can be searched incident to arrest.
Raising the perpetual struggle of applying physical world precedent to digital world reality, Greenhouse explains why the banal decision in Smith v. Maryland, the old pen register case that rested on the ill-conceived Third Party Doctrine, poorly serves the future.
The fit is awkward at best; the Supreme Court’s description of a pen register — “a mechanical device that records” on a paper tape “the numbers dialed on a telephone by monitoring the electrical impulses caused when the dial on the telephone is released” — reads like something from Alexander Graham Bell’s laboratory. Differing conclusions about whether the old cases are even relevant, let alone controlling, have divided the lower courts, state as well as federal. For anyone interested in how the law develops in a system ostensibly governed by precedent, the progress of these cases promises to be the best show in town.
Whether it’s likely to be the “best show in town,” or a third-rate M. Night Shyamalan horror show is a matter of perspective. It will be interesting, at least to the few who care about whether there will be any future of privacy in this nation, but it may be very hard to watch. Foreshadowing the problem, Greenhouse cites to Justice Sotomayor’s apocryphal concurrence:
And Justice Sonia Sotomayor, in perhaps the best-known opinion of her tenure so far, wrote that “it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties.” Citing Maryland v. Smith, she added, “This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks.”
None of this, of course, is new. At least to anyone who reads SJ with some regularity. Indeed, I’ve harped on this problem for quite a long time, which makes the dual cellphone cases that much more interesting and, well, scary. But Greenhouse’s view of what the Court will decide is somewhat different from mine.
The cellphone cases the court accepted last week challenge the applicability of another Fourth Amendment precedent from the 1970s. United States v. Robinson applied a doctrine known as “search incident to arrest” to uphold the warrantless search of a cigarette pack in the coat pocket of a man they had just arrested for driving without a license. Inside the pack were 14 capsules filled with heroin. Writing for the court, then-Associate Justice William H. Rehnquist said that as long as there was probable cause to make an arrest in the first place, “a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a ‘reasonable’ search under that Amendment.”
As I’ve already written at length as to why the analogy of a pack of cigarettes fails to make the rational leap to cellphones, there isn’t much reason to go there again. But there is a quirk to the Supreme’s grant of cert that appears to have eluded Greenhouse. Fortunately, Orin Kerr picked up on it right away.
Although the two cases raise the same legal issue, the facts of the two cases actually are pretty different. And the difference in the facts reflects the fast-moving evolution of cell phones.
Wurie, you see, involved a standard flip-style cellphone, while Riley, two years younger, involves a smartphone. When they took the cases, the Court pulled a shrewd move:
The Court modified the Questions Presented in Riley to match that in Wurie, so the question presented in both is “[w]hether evidence admitted at petitioner’s trial was obtained in a search of petitioner’s cell phone that violated petitioner’s Fourth Amendment rights.”
In other words, rather than address the question that exists today, whether a search incident would allow the police to conduct a colonoscopy on a suspect’s smartphone, which contains not just calls sent and received, perhaps some text messages, but access to everything this pocket computer can provide, from search queries to GPS to the full store of emails sent and received.
Care to know whether your flip phone is safe from search in the age of smartphones? Pondering whether the Conestoga wagon is better analogy for your F-150 pick-up than, say, your Prius? Whatever decision the Supreme Court renders, it will by definition be a decade behind our digital reality because they toyed with the Question Presented.
Linda Greenhouse recognizes that doctrine by analogy has its inherent flaws:
But a cellphone is much more revealing than a pack of cigarettes, a panel of the United States Court of Appeals for the First Circuit, in Boston, said last May in one of the cases the Supreme Court has agreed to review. By a vote of 2 to 1, the appeals court suppressed the evidence — drugs, a gun and ammunition — the police found when they tracked the address of “my house” from the call log of a cellphone belonging to a man they had just arrested after witnessing his involvement in an apparent drug sale.
Yet, she’s still talking about the old flip-phone, much as the Supreme Court’s decision in Smith v. Maryland, upon which the NSA telephony metadata surveillance cases rely, which was relatively uncontroversial at the time because a pen register’s output, the telephone numbers dialed, just wasn’t that big a deal.
Even so, Justice Blackmun, the putative author of Smith, offered this quip in response to a note on the case by then-Chief Justice Warren Earl Burger:
He ended his note with a lighthearted P.S.: “I’m going to use a public phone for my calls to my bookie.”
Except there are no public phones anymore, judge. And there aren’t too many who still use a flip-phone, for that matter. And the use of smartphones revealing everything, every aspect of our digital lives, is pervasive. That’s the world around us today, while the justices consider whether the suspect who is picked up for speeding in his Conestoga wagon subjects his every thought to search because he’s carrying his smartphone.
Like Greenhouse, Orin thinks this will be “very fun to watch.” I guess they both like horror shows more than I do.