in That Phone, Punk?
rung this bell a bunch of times in the past and Iím gonna
keep ringing it: Your right to privacy is slowly and steadily
going down the dumper. Something happened last week that demonstrates
this in spades.
Californiaís highest appeals court ruled last week that itís
perfectly legal for police to rummage through the cell phone
of someone who is under arrest. The court based its decision
on 1970s-era Supreme Court precedents that held that police
may inspect and examine whatever they find on a person after
that person is arrested. The case involved a drug bust where
the arresting officer found text messages on the defendantís
cell phone that further implicated the defendant in a drug
Do those rulings make sense if they are extended to cell phones?
As smartphones become increasingly powerful and popular, decisions
like this become increasingly problematic. Smartphones are
quickly encroaching into the territory previously occupied
by home computers, and between increased power and memory
and the growing use of cloud-based computing and storage,
a smartphone can hold or be a conduit to massive amounts of
A few years ago, when the RIAA was suing kids for downloading
songs, I argued here that the courtsí usual practice of allowing
the RIAA to inspect the hard drives of the kidsí computers
to find evidence of downloading was hideously invasive, because
a serious computer userís hard drive is very much an extension
of the userís brain. To force a kid to give up his hard drive
for inspection as a condition to allowing the kid to defend
himself in a copyright infringement lawsuit struck me as absurd.
I was hoping that the right client would come along so I could
make this argument in a court somewhere, but none of the cases
that I handled got to that point.
The same considerations apply here, except the ramifications
are so much worse. A cop can take you into custody for any
kind of crime, even a DWI, and then take a look at whatever
your smartphone might reveal: your emails, your texts, your
photos, your contacts, documents, links, the whole nine yards.
There is clearly a wild lack of balance between the effects
of this ruling and most peopleís expectation of privacy. Itís
like Orwell on steroids.
I used to think that rulings like this were the result of
geriatric or technophobic judges who just didnít understand
the world of computers and the Internet. But this was a 5-2
ruling by the highest court in California, and these judges
have shiny, bright law clerks fresh out of law school doing
their research, and the march of time has made an understanding
and appreciation of todayís technology pretty much universal.
In any event, this decision is at odds with several previous
decisions in other courts that have held that searching oneís
cell phone or computer after an arrest is indeed a breach
of privacy and is unconstitutional. This conflict among courts
could set the stage for the issue to be looked at by the Supreme
Which, of course, raises some more troubling problems. The
Supreme Court hasnít taken on many right-of-privacy cases
lately and hasnít addressed the right in any kind of comprehensive
way in a long time. And the Court, as it is currently constituted,
could have a problem with the right of privacy. You see, the
word ďprivacyĒ doesnít appear anywhere in the Constitution
or the Bill of Rights. The right of privacy weíve known all
of our lives was constructed by judges who believed the right
could be inferred from various guarantees in the Bill of Rights
to create a ďpenumbraĒ of a right to privacy.
Several of the justices on the Supreme Court, most notably
Justice Antonin Scalia, donít buy into the whole penumbra
deal. They are strict constructionists, or ďoriginalists,Ē
who insist that the Consitution must be read narrowly and
interpreted pursuant to the intent of the guys who wrote it.
Just last week, Scalia said in a speech that he didnít think
the Constitution or the Bill of Rights provided for equality
for women. Think about what that means. Think about how that
jibes with your understanding of the world, of your country,
of the law. And then come to grips with the fact that there
are people on the Supreme Court of the United States who not
only believe this, but are in the position of being able to
impose this belief, and other similarly shocking beliefs,
So, what happens if this cell-phone case makes it to the Supreme
Court? By any measure of rationality, it should be reversed
based on the right of privacy. But we donít live in a rational
world. So, really, itís anybodyís guess.