How two SCOTUS decisions could thwart electronic privacy erosion

Screen shot 2014-06-15 at 3.19.17 PM

As Lucius Fox said, this does feel “wrong.”

By Cara L. Gallagher

Considering the median age of the nine Supreme Court Justices is around 65, Generation X, Y and Millenials should sit up and pay attention, not only the specifics of the two 4th Amendment cases involving cell phone searches (Riley v. CA and U.S. v. Wurie), but also the decisions.  Many of us have smart phones today.  Such devices and the applications we use are no doubt as much of an extension of us, in the royal sense, as our limbs.  If forced to choose which we’d rather sacrifice, the answer likely rests on how many of the limbs would have to go in order to still functionally operate a smart phone.

Smart phones are ubiquitous among 14-50 year olds, but not among the Justices.

There are exceptions – Justice Breyer admitted that he has one, although claimed he didn’t know what kind of smart phone he owns.  Fortunately, the age and tech gaps between the Justices and the stakeholders in these cases were not lost on Justice Kagan.  During oral arguments in Riley, Kagan referenced the reality that however this decision comes out, “most people now do carry their lives on cellphones, and that will only grow every single year as, you know, as young people take over the world.”  It was apparent that Justices Kagan, Breyer, Ginsburg, Sotomayor, and Scalia were troubled by the outcomes of a decision supporting unwarranted police searches of cell phones during routine traffic stops or misdemeanor-worthy offenses.

Mobile smart devices have grown more affordable, they provide entertainment and knowledge, they supplement education both in and out of educational settings, and, lest we not forget their original purpose, are a necessity for communicating in myriad ways.  It is considered irresponsible for most of us in our careers not to use smart devices to check email, text messages, calendars, Twitter, and Facebook and numerous other apps expected of workers in today’s global economy.  In extreme cases, ignoring a few of those could get you fired.  Put together, those applications possess information within our phones that represent every facet of our lives both personal and private.

Given the mobility of these devices and applications, many are inclined to do little more than password protect their smart phone when bringing the information out of private spaces and into the NSA-creeping, data-mining public venues we slip in and out of regularly.  This is likely all most of us do to retain what little control we have over that personal info.  It’s easy to come down with a case of the terrors over a lapse in this control by thinking of what information you’d freak out about first if you knew your cell phone had been stolen by a mildly tech savvy criminal.  For me, that’s easy.  My first thought is of the emails I persistently get from my bank – who insisted I save the environment by switching to electronic statements delivered weekly, via email – that contain my account info, credit card numbers, and occasionally ask me switch my password by “clicking on the link below” to protect my security.  Thoughts of becoming a financial hostage to this person and the damage he could do creates an instantly crippling panic.  Next would be all the text messages between my husband, our wise guy friends, and myself.  At times, our communication is unsavory, juvenile, and embarrassing, albeit pretty common among friends of 20+ years, and probably easy to misconstrue if seen by the wrong person.

Now imagine it’s not a mildly tech savvy criminal but a police officer looking for evidence to use against you after a minor offense.  Forced to choose between these two, I’d take the criminal over the cop. The former might cause me a series of annoying calls to my bank and credit agencies whereas the latter, at best, could download all my personal info into a permanent database, at worst, do that and arrest me.

It’s not like we weren’t already worried about such subterfuges to our personal and private info as we all learned this past spring of the NSA snooping through our metadata and storing the data forever.  The Supreme Court Court denied hearing a case this past spring that would’ve challenged the constitutionality of the NSA’s warrantless searches despite the U.S. District Court for the District of Columbia ruling it was in violation of Americans’ 4th Amendment right.  I was disappointed by this decision as, like many other people, I took little comfort in the President’s explanations and apologies, the NSA’s statements that they’re backing off, and subsequent Senate investigations.  But maybe the Supreme Court could protect our private virtual lives with decisions in Riley and Wurie.

Realistically, the chances the NSA is surveilling your phone’s data are less likely than the chances your local police officer will if you drive with expired plates, roll a stop sign, forget to pay a fine and have an outstanding warrant issued for your arrest, or run a stale yellow light.  These very common and very real hypotheticals could all result in your arrest and the search of your phone, unless the Court says ‘no.’  Exigent circumstances could still result in unwarranted and justified searches of cell phones, but Riley’s guilt was based on images that came off his phone after police stopped him for having expired plates.  We may not get a win in the virtual, NSA-snooping world, but if we want a victory for individual protection of privacy in our towns, communities, and cities – these are the cases in which the Supreme Court can give us that win.  Supreme Court opinions ruling against unwarranted searches would send a decisive message to Americans and lay the groundwork for future cases that wish to challenge the constitutionality of tracking, snooping, and storing personal information.