- The Washington Times - Sunday, July 6, 2014

Rulings on contraception and recess appointments may have grabbed bigger headlines, but the Supreme Court’s decision last month requiring police to get a warrant before snooping through someone’s cellphone is likely to have a bigger lasting impact.

The 9-0 decision already has police, lawyers, members of Congress and lower courts mulling over the implications for other 21st century technology and, in particular, what the justices’ legal reasoning means for the future of National Security Agency’s phone-snooping program, cloud computing and police’s cellphone-tracking requests.

Chief Justice John G. Roberts Jr.’s opinion in last week’s case, Riley v. California, didn’t deal with the NSA. But it was the way he approached the issue of smartphones — declining to apply 20th century precedents to new technology, and instead going back to the founders’ first principles — that is likely to spur the shake-up.

“There’s language in the opinion that suggests the court is going to be receptive to pro-privacy arguments we’re going to raise,” said Hanni Fakhoury, staff attorney at the Electronic Frontier Foundation, which has brought some of the lawsuits that are pushing a rethink of understanding of privacy.

The Riley case, with its companion case, U.S. v. Wurie, follows a 2012 ruling in U.S. v. Jones, wherein the court held that police trespassed when they went on someone’s property to install a GPS tracker on a suspect’s car and kept it there longer than their warrant allowed.

“There have now been three cases in the last couple years raising significant Fourth Amendment issues in the new digital age, and the government has now lost all three of them unanimously,” said Nathan Freed Wessler, staff attorney at the American Civil Liberties Union. “I think it’s a strong signal that the court is paying close attention to the need to develop 21st century rules for 21st century searches.”

In the cellphone cases, the government had argued that a cellphone was like a piece of paper or anything else police find when they ask someone to turn out his pockets. Under previous precedent, police were allowed to use information gleaned from that kind of search.

But Chief Justice Roberts said browsing through a cellphone went beyond just looking at a piece of paper.

In a ruling that went into details such as gigabytes of storage space and “apps,” or applications, the court said the intimate details of someone’s life can now be stored in a pocket — information that clearly fell within the protections the founders envisioned for the Constitution.

“For one of the very first times, the court is thinking like a regular person. It’s talking about apps; it’s talking about [how] you carry 1,000 pictures. It’s talking about [the] real world,” Mr. Fakhoury of EFF said.

Now lawyers are asking what else that kind of reasoning can be extended to.

Courts are already grappling with searches at the border, where authorities have confiscated laptops and perused their contents. And federal appeals courts have issued split rulings on whether police need a warrant to ask a cell company for the information tracking where someone’s phone has been — a way of potentially linking someone, by geography, to where a crime was committed.

The big question in legal circles is what happens with a 1979 case, Smith v. Maryland, which held that installing a pen register to track telephone numbers someone calls is not a search, so the government doesn’t need to get a warrant to get that information.

In that decision, the court reasoned that the consumer was voluntarily turning the information over to the telephone company and so didn’t have a legitimate expectation of privacy.

Hotly debated since, the Smith ruling has come under particular scrutiny in recent months with the revelation that the government was tracking the time, duration and numbers involved in most calls made in the U.S.

That bulk collection, revealed by former government contractor Edward Snowden’s leaks, has raised questions about whether the exponential explosion of data — and the power to collect it — has made some of those 20th century decisions irrelevant.

In the 2012 Jones decision, wherein the Supreme Court ruled the government couldn’t place a GPS tracking device on a car without a warrant, Justice Sonia Sotomayor wrote a concurring opinion saying the court may need to revisit what’s become known as the third-party doctrine.

Mr. Fakhoury at the EFF said it’s also possible the court could keep the Smith ruling intact but find that bulk data gathering, such as the NSA’s phone snooping program, is different.

“Smith v. Maryland is about one guy’s phone calls over three days. NSA’s phone collection is about five years of every single American’s phone calls. There’s a world of difference between the two,” he said.

But Stewart A. Baker, former assistant secretary for policy at the Department of Homeland Security, said legal thinkers should be wary of sidelining the Smith case, saying the logic behind it still rings true today.

“I think it’s actually very hard to rethink that in a way that withstands the test of time and analysis and the press of litigation,” he said. “I think once it comes to the Supreme Court, they’re going to realize that. They don’t like to write a rule that will require 20 more cases to decide what it actually means.”

Writing a new rule from the high court could also end up missing key developments in how Americans view technology, said Mr. Baker, who is now a lawyer at Steptoe & Johnson law firm.

He pointed back to the beginnings of current privacy jurisprudence, which began in the late 1900s when future Justice Louis Brandeis laid out the case, protesting against the encroachment of technology. His target at the time was the portable Kodak camera and its potential use by the press. Today, the camera is a given in Americans’ lives.

He said the problem is that by the time the privacy rules are written to accommodate new technology, Americans’ sensibilities and acceptance level have changed.

“We should wise up and stop saying, ‘Oh, I’m uncomfortable with this; we need privacy rules that stop me from being uncomfortable,’” he said.

The Smith decision has long tentacles.

Mr. Wessler pointed to a medical records statute in Oregon, which is one of many states that have created prescription drug databases so doctors can look up patients’ records and try to stop doctor shopping or individuals who are trying to obtain multiple prescriptions.

In Oregon, the statute requires a warrant for police to get a look at the data. But federal drug authorities demanded the data without a warrant, arguing that the state’s prohibition didn’t apply to them since, like the Smith decision, patients voluntarily engage in the commerce that causes their prescription data to appear.

But Mr. Wessler said if that stands, it means the government could gain access to the most intimate of information without needed a warrant.

“To us that’s just a galling assertion and a complete misunderstanding of people’s expectations of privacy,” Mr. Wessler said.

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