Carry Your Entire Life on Your Smart Phone?

Too many Americans do, and if you carry a smart phone, laptop or a tablet in your car, you’ve got the potential of exposing every tiny detail or your life to anyone coming into possession of those very personal accumulations of “you.” In 2001, in Atwater vs. Lago Vista, the United States Supreme Court held in a 5 to 4 decision that where a state legislature (Texas in this case) had authorized a warrantless search of a vehicle following a probable cause-supported stop in a relatively minor traffic violation, a resulting police search of the car did not rise to the level of a constitutional violation of the Fourth Amendment (search and seizure) rights of the occupants of that car. So if the cops wanted to check out a backpack or look into the trunk or the glove compartment after a traffic violation, without a warrant, that was cool with the court.

Slowly, police figured out that if they could find a “bona fide” reason to stop a vehicle – a seatbelt violation for example – they could use this as an excuse to take an occupant’s smart phone and either look at its contents or even download all the information on it.  For possible felons under suspicion, this was a way for police to get lots and lots of information about that suspect without having to justify a warrant to a judge. As time has passed, increasingly consumers carried just about everything about their lives, directly or indirectly, on their smart phones. Police departments were having a field day with this massive loophole, and individual privacy vaporized in the process.

On June 25^th, the Supreme Court faced this technological change head on, and reached one of the rarest of the rareunanimous decisions in Riley vs. California: “The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought… Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple — get a warrant,” noted the justices.

“The court drew a clear distinction between digital and physical searches in the opinion, at one point saying it was the difference between horseback riding and space travel. ‘The United States [the government’s case] asserts that a search of all data stored on a cell phone is 'materially indistinguishable' from searches of these sorts of physical items.... That is like saying a ride on horseback is materially indistinguishable from a flight to the moon.’

“It also invoked aliens when describing the proliferation of cellphones in modern life. ‘These cases require us to decide how the search incident to arrest doctrine applies to modern cell phones, which are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy,’ it wrote. ‘A smart phone of the sort taken from Riley was unheard of ten years ago; a significant majority of American adults now own such phones.’” Washington Post, June 25^th.

OK, this sounds like common sense to most of us, but of late, the Supreme Court has issued rulings that seem completely devoid of common sense – like the horrific Citizens United ruling that lets the rich to use their money in an almost unrestricted fashion to influence elections. That the Riley decision was unanimous suggests that the flood of attacks on individual privacy just moved up a notch in the eyes of the law. Judges are now justifiably afraid of government intrusions into individual privacy, a suggestion that has to send the National Security Agency quivering at what that court may do to their massive over-reaching requirements and requests of common carriers to hold person phone and digital information for them to look at… whenever.

I’m Peter Dekom, and it is about time that a unanimous court sees the same outrage that appears to be pretty obvious to the rest of us.