While it’s not quite as far as I would go, and likely most of you, a relatively quiet but radical shift has taken place in the writings of George Washington lawprof Orin Kerr. Who cares, you say? I do, for one, but more importantly, you should because Orin is one of the few people who has been on top of computer crime from the outset and, even more importantly, courts have turned to for guidance.

In other words, Orin Kerr’s writing have influenced the approach courts have taken, particularly to the Computer Fraud and Abuse Act and search and seizure of computers, including pretty much everything that incorporates a computer chip and memory into its function. 

As much as it would be nice of the writings and thoughts of criminal defense lawyers had a significant influence on the judicial approach to search and seizure as applied to the new world of computers, the fact is that it hasn’t. At least, not nearly as much as have the writings of scholars like Orin. This is what makes his latest writing important and remarkable.

In a short essay, entitled Foreword: Accounting for Technological Change, Orin takes what can only be described as a radical shift in recognizing the cellphones, which during their brief life-span have become mini-computers brimming with personal content far exceeding anything that could have been dreamed of a few short years ago, should not be subject to the blind application of search and seizure rules that would apply under the “search incident to arrest” exception to the 4th Amendment.  From the summary:

This short essay considers how the Fourth Amendment should apply to the search of a cellular phone seized incident to arrest. It argues that the storage capacity and type of evidence stored on a cell phone justifies a departure from existing Fourth Amendment doctrine. Under United States v. Robinson, 414 U.S. 218 (1973), the Fourth Amendment always permits a “full” search of a person and property on his person at the time of arrest. This essay argues that the Supreme Court should reject that standard for searches of digital storage devices. Instead, Court should adopt the standard that the Court adopted in Arizona v. Gant, 556 U.S. 332 (2009), for searching an automobile incident to arrest.

His approach explains the problems on two levels. first that the rationale for a search-incident simply doesn’t carry over from the seizure and inspection of physical objects to digital storage devices.  While I supposed a suspect can fling a razor smartphones with Odd-job like speed and accuracy to turn it into a weapon, the likelihood of a smartphone being used as a substitute for a gun isn’t strong. Similarly, inspecting the physical aspect of a smartphone, such as one would inspect a pack of cigarettes to see if it contains marijuana inside, to search for physical evidence won’t prove particularly revealing.  Without turning the phone on and conducting a search of its digital contents, none of which are apparent on the physical surface of the device, no evidence is likely to be found.

The second aspects addresses the nature of a smartphone as a digital storage device.  It’s not your grandma’s Jitterbug.  Smartphones contain an enormous wealth of personal information, ranging from contacts, emails, text messages to web pages viewed.  The search-incident exception was never devised or intended to provide police with a wholesale view of a person’s private information and thoughts. It was a safety measure for person and evidence, yet its application in the age of digital storage would eviscerate privacy based on the fortuitous fact that an arrested defendant had a smartphone on his person.

Instead, Orin contends that the search-incident rules should give way to the Supreme Court’s Gant decision relating to the automobile exception to the warrant requirement:

In my view, sensible guidance for new rules governing the search of digital storage devices incident to arrest is provided by existing doctrine on searching automobiles in those circumstances. Like cell phones, cars are mobile. And like cell phones, cars can store a great deal of personal information. As the Court recognized in Arizona v. Gant allowing a complete search of a car as a routine matter whenever the driver has been arrested permits a search far beyond the rationales of the exception Under Gant, officers can search the car only in two circumstances: first, “when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search,” and second, when “it is reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.

While this may still fall a fairly substantial distance from a distinct approach, the development of a new body of 4th Amendment jurisprudence relating to computers that recognizes digital storage as fundamentally different from the seizure of items in the physical realm, that Orin argues against the rote application of extent exceptions based on physical world circumstances that would otherwise dictate which exception applies is a radical shift.  

Orin revisits the rationales, and finds them lacking as applied to computers. This is a huge recognition that computers are unlike anything that existed in the physical world as exceptions to the warrant clause were developed to allow police a ready means of circumventing the 4th Amendment.

Granted, Orin still applies existing law by analogy, which leaves open a variety of argument, such as the content of a smartphone may be of evidentiary value in determining the phone number of a drug supplier, and has yet to go “all in” on the notion that digital storage devices are more akin to personal papers and effects than any other physical objects, the fact that his approach is rationale based rather than rubric based is a significant step forward.

Most importantly, what matters here is that scholarly writings about the relationship of the 4th Amendment to the digital world are evolving, offering hope that the law will eventually catch up with technology and the  public’s oft-mistaken belief that they can enjoy shiny toys and still maintain a tiny bit of personal privacy.