In a recent, unanimous SCOTUS opinion (Riley v. California) the justices ruled that the police must obtain a warrant to search information on a suspect’s cell phone. With this opinion, the Supreme Court took a big step toward protecting the 4th Amendment and a small step into the 21st century…well, sort of. Essentially, the opinion, written by Chief Justice John Roberts, distinguishes between cell phones and typical pocket fare like cigarettes, wallets, knives and loose change. Quoting Chief Justice Roberts – “Cell phones differ in both a quantitative and qualitative sense from other objects that might be kept on an arrestee’s person. Many of these devices are in fact minicomputers that could just as easily be called cameras, video players, rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps, or newspapers.” Some readers may need to Google rolodexes, tape recorders and albums to get the full meaning, but you get the point. The opinion went further to state, “It is no exaggeration to say that many of the more than 90% of American adults who own a cell phone keep on their person a digital record of nearly every aspect of their lives.”
I find it alarming that it took this long for this issue to be decided and that the US Supreme Court had to ultimately set the law of the land on such an obvious breach of the 4th Amendment. I’m even more shocked to learn that as many as 10% of American adults don’t own a cell phone.
The advancement of technology, well beyond cell phones, is far ahead of the courts. As judges enter the 21st century, they will need to deal with all types of hairy issues that infringe upon the rights of U.S. citizens and deeply affect the judicial system. Consider the use of data by the government in eavesdropping on and tracking individuals and the digital footprints left behind by all of us every day (e.g. cell tower data, EZ Pass, credit cards, social media posts). Also consider the recent disclosure that Facebook conducted its own social experiment on 690,000 users to see how their shuffling of posts impacted how users posted in response. (Spoiler alert: those users shown more positive posts responded with more upbeat posts while those shown more negative posts – you guessed it – responded with more negative posts.) While Facebook’s actions may not have broken the law, they do highlight how technology permeates our lives. It influences everyone and needs to influence how quickly the courts get up to speed on its impact.
Of course, the ultimate protection provided by this ruling under the 4th Amendment will be determined by how readily warrants to search cell phones are granted by judges in the lower courts. So, while a step in the right direction – the future – it remains to be seen how stuck in the past we will actually be.