Awkward At Best

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.




9 thoughts on “Awkward At Best

    1. SHG Post author

      That may be the answer (or as Judge Korman recently held, leave your computers at home when crossing the border), but forgoing the use of technology doesn’t strike me as a good answer for the future.

  1. Maria

    Isn’t the work around to have a pass code on your phone? I can’t imagine that an individual could be compelled to unlock their phone for the arresting officers or that the court would find it “incident to arrest” if they took the phone back to the precinct and ran it through digital analysis.

    Although that second point is more a limitation of tech than anything else.

    1. SHG Post author

      I can’t imagine…

      You need to expand your imagination. Locking a phone, like encryption, is just another hurdle with problematic implications. It might work, at least on the street and provided the cop doesn’t put a Glock to the head to ask politely to unlock the phone, but it’s unlikely to stymie a forensic examination.

      But even so, it’s not particularly helpful to come up with ways on this side to prevent the other side to gain access, as it doesn’t serve to help anyone who’s smartphone isn’t locked and places the burden on the individual without limiting law enforcement’s authority to circumvent protections against unreasonable search. For each stumbling block we can create through tech, there will be a fix they can create to overcome it.

      Or, to put it another way, the problem is that the 4th Amendment needs to be honored, not that we can’t come up with ways to make it harder on the cops to search.

  2. Maria

    Yeah, I meant my comment more to deflect any chance that an officer would access the phone in the field “incident to arrest” or in the course of any kind of exchange.

    But I agree that the problem is much bigger and much more fundamental. It shouldn’t be up to the average citizen to lockdown every device they have or go without in order to prevent the government from violating their privacy.

    Also, I read the article you linked to as well and I like the diary analogy. I’m going to have to start using that analogy myself.

  3. Jeffrey Deutsch

    Would you change your view if you knew that apps already on the market (eg, Android Device Manager, Cerberus, Lookout, etc) can “wipe” a smartphone’s memory (aka do a factory reset) immediately, thereby destroying evidence?

    1. Rick Horowitz

      I wouldn’t.

      Why should I say, “No biggee. I don’t mind that the Constitution no longer exists. I can always erase all my important stuff.” Kind of a reversal on the “if I can’t have it, no one can,” isn’t it? “If he can have it, then I’ll make sure none of us can — not even me, the guy to whom it belongs, and who needs it the most to get through my day-to-day life, or I wouldn’t be carrying it around with me everywhere I go.”

      1. Jeffrey Deutsch

        What honest people can (albeit, yes, they shouldn’t have to) do to prevent thieves (of whatever stripe) from getting their personal data, criminals can do to prevent good law enforcement (neither a redundancy nor an oxymoron) from getting evidence of crimes.

        Do you want to remove the destruction of evidence grounds for all searches incident to arrest, or only for searches of smartphones incident to the arrest of their possessors?

    2. SHG Post author

      Not at all. In addition to what Rick said, it would mean that a person would lose all his data, which may represent substantial work and effort, all to compensate for the absence of protection from arbitrary search. This would be a disaster, a horrible “solution.”

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