On Tuesday, the Supreme Court heard oral arguments in two cases which could have a profound impact on the direction this country will take with respect to surveillance and civil liberties.
The immediate issue is whether the police need warrants to search the cell phones of people they arrest.
“Our rule has been that if you carry it on your person, you ought to know it is subject to seizure and examination,” Justice Antonin Scalia said.
But that rule predates the existence of the smartphone.
“We’re living in a new world,” Justice Anthony M. Kennedy said. “Someone arrested for a minor crime has their whole life exposed on this little device.”
Even Justice Alioto, who generally doesn’t let the facts of the case intrude upon his ideological predisposition, was troubled.
“Smartphones do present difficult problems,” he said, later asking: “So how do we determine what the new expectation of privacy is now?”
The arguments used by National Security Agency lawyers to circumvent constitutional protections against unreasonable search and seizure also involve an individual’s expectation of privacy. No such expectation exists, with respect to a smartphone’s metadata, they say, because that metadata is freely given over to a telecom. To justify their position, they use a 1979 case, long before smartphones, and the mountains of metadata they transmit, invaded our lives.
Early indications are that the Justices may be splitting around this issue into refreshingly new factions. Is the Court stumbling into the 21st century?
It was not a hopeful sign when Justice Breyer couldn’t say if he had an iPhone:
“because I can never get into it because of the password.”