1.13.11 SCHMIVACY

This article originally appeared in the 1.13.11 issue of Metroland


I’ve rung this bell a bunch of times in the past and I’m 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.

California’s highest appeals court ruled last week that it’s perfectly legal for police to rummage through the cell phone of someone who is under arrest. The Court based its decision on 1970’s 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 defendant’s cell phone that further implicated the defendant in a drug sale.

Do those rulings make sense if they are extended to cellphones? As smartphones become increasingly powerful and popular, court 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 personal information.

A few years ago when the RIAA was suing thousands of kids for downloading songs, I argued here that the courts’ usual practice of allowing the RIAA to inspect the hard drives of the kids’ computers to find evidence of downloading was hideously invasive, because a serious computer user’s hard drive is very much an extension of the user’s 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 that I could make this argument in a court somewhere, but none of the cases that I handled in the RIAA terror campaign got to that point.

The same considerations apply here, except here 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. Clearly there is a profound lack of balance between the effects of this ruling and most people's expectation of privacy. It’s like Orwell on steroids.

I used to think that rulings like this were the result of geriatric or technophobe judges who just didn’t 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 today’s technology pretty much universal.

In any event, this decision is at odds with several previous decisions from other courts that have held that searching ones cellphone or computer after an arrest is indeed a breach of privacy and unconstitutional. This conflict among courts could set the stage for the issue to be looked at by the Supreme Court.

Which of course raises some more troubling problems. The Supreme Court hasn’t taken on many right-of-privacy cases lately and hasn’t 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 “privacy” doesn’t appear anywhere in the Constitution or the Bill of Rights. The right of privacy we’ve 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 “penumbra” of a right to privacy.

Several of the justices on the Supreme Court, most notably Justice Antonin Scalia, don’t buy into the whole penumbra deal. They are strict constructionists, or “originalists”, who insist that the Consitution must be read narrowly and interpreted pursuant to the intent of the guys who wrote it. In 1787.

Just last week Scalia said in a speech that he didn’t 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, on you.

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 don’t live in a rational world.