In an upcoming law review article, Orin Kerr plans to argue that the subjective expectation of privacy prong of Katz is dead. Muerte. Gone, gone, gone. I told him that wasn’t the case. It wasn’t dead. It was just sleeping. Or to be more precise, the subjective expectation of privacy prong was only honored in the breach. It was taken for granted, except when the prosecution can demonstrate that it didn’t exist. Then it was resurrected to be used against the defendant.
But as was my good fortune, Judge Richard Kopf, in the course of asking some silly questions, raises a point that goes to the heart of Orin’s issue:
Second, virtually all smart phones can be locked. That is, they cannot be opened and operated without using a code or a fingerprint scanner. Indeed, my government iPhone locks itself when no longer than five minutes has expired after the last use and may lock as early as one minute. At that point, I cannot use the device without unlocking it using a six digit code or a fingerprint scanner. (A terrible pain in the ass.)
If a digital device is easily locked and therefore protected against prying eyes when locked, there is little doubt that the owner has a reasonable expectation of privacy in the massive storage capacity of that device provided the locking mechanism is enabled. A warrant therefore would be required to search the contents of a locked cell phone no matter how one views the Fourth Amendment.
But, if the phone is not set to lock, why should a warrant be required when the owner has not taken a simple and easy step that would protect his or her privacy when out and about in an auto with his smart phone? Why is the search of this vast “open container” lawfully seized by the police, but without a warrant, unreasonable?
What perfect timing. Does not locking the phone call into question the defendant’s subjective expectation of privacy? After all, phones can be locked. Locking phones certainly demonstrates an expectation of privacy. Not locking phones, then, demonstrates the opposite, does it not?
First, to Orin. Now do you see my point about the subjective expectation of privacy only being honored in the breach? Judge Kopf raises the question to disprove the subjective expectation of privacy. It’s a benefit to the prosecution, to be used to argue that Katz’s reasonable expectation of privacy has not been met. So if your point is to get rid of it altogether, I’m with you, bro. That way, it can never be used to bite a defendant in the butt again, as that mean old Judge Kopf tries to do.
Second, as to Judge Kopf (I was only kidding about the “mean old” thing), your question could have been framed two different ways. You framed it as unlocked, meaning no subjective expectation of privacy, versus locked, meaning a subjective expectation of privacy. The alternative would be unlocked, meaning a subjective expectation of privacy because reasonable people don’t expect the cops to be rifling through their smartphones, and locked, an even stronger expectation of privacy, because it can be. Then, there are even greater protections, such as biometrics or more sophisticated locking methods, or relocking methods, or the eventual “Mission: Impossible” self-destruct method, which will certainly be an app soon.
Some might argue that leaving your front door open isn’t an invitation to the police to come in and search, a proposition that few would argue against. But then, if the front door is closed, but unlocked, it’s clearer. And if it’s locked, it’s more clear. And if it’s double, even triple locked, yet more clear. And if there is a steel door, like a bank vault, well, that’s really, really clear. But how clear does it need to be to reflect a subjective expectation of privacy?
The question can only be answered once a baseline is established. If one expects that the police have no business searching their smartphone, regardless of whether it’s off or on, locked or unlocked, then that would constitute a baseline. The addition of other impediments to search may well reflect a greater subjective expectation of privacy, but to require such a greater expectation of privacy is to make locking the phone the baseline.
My smartphone has automatic locking. It’s pretty easy to figure out how to unlock the phone, so the phone also has more challenging methods of unlocking. I don’t use them, because they’re a pain in the ass. Since I have no subjective expectation that the police will seize and search my phone, I feel no compulsion to use the most severe means of protecting my privacy. I expect my privacy to be respected even if my phone is unlocked. Not because the police can’t physically manage to get in there, but because they have no business going in there.
So my subjective expectation of privacy relies on a baseline of police keeping their prying eyes out of my smartphone, without regard to whether it’s locked or unlocked, or how impenetrable my locking may be. Am I being objectively unreasonable?
Orin may argue that my subjective expectation is “a phantom doctrine,” and if Judge Kopf accepts the premise that I’m allowed to believe that my unlocked phone is just as entitled to my subjective expectation of privacy as my phone encased in lead and steel, with sharp prongs surrounding its exterior, then perhaps it is. But since Judge Kopf asked, my subjective expectation still matters, because someone might argue that my failure to lock the phone reflects my lack of a subjective expectation of privacy; I could have locked it. I didn’t. It’s all my fault.