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September 2019
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Are we our cells?

    For a U.S. Supreme Court that has notoriously been reluctant to accept any Constitutional view that didn’t originate in the 1700s, their recent ruling on cell phone privacy is startling (and somewhat hypocritical).
    The justices last week essentially ruled that cell phones deserve higher protection during police searches of suspects than anything else a modern American owns. In essence the justices recognized that with a vast majority of Americans their cell phone is their personality encapsulated in a small device.
    For a body of people whose average age is 68 years old and likely not Snapchatting selfies of themselves in their robes, the justices showed a pretty keen understanding of how cell phones are much more than something to make a call on.
    “They could just as easily be called cameras, video players, rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps, or newspapers,” Chief Justice John Roberts explained during the hearing.
    In their ruling, which protected cells from preliminary searches without warrants, the justices noted, “Modern cell phones, as a category, implicate privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet, or a purse. An Internet search and browsing history, for example, can be found on an Internet-enabled phone and could reveal an individual’s private interests or concerns — perhaps a search for certain symptoms of disease, coupled with frequent visits to WebMD.”
    Apparently at least one justice uses a cell phone app for exercise as the discussion at the high court included a query of whether information recording the number of steps someone had taken that day should be protected and, if not, how handy it would be to an investigator trying to determine where a suspect might have gone prior to being handcuffed.
    The basis of what the Supreme Court took up concerned two different challenges to searches of information held on cell phones. One case originated in Boston and showed a stash of drugs on a photo taken by someone arrested for something else. The other case, from San Diego, involved a cell phone that contained  photos and text message accounts of gang activity, including a shooting.
    Police officers are allowed to search anything in a pocket, including going through a wallet when making an arrest, but the court was adamant that cell phones are off limits, -- even though lawyers for the Obama administration presented some reasonable arguments, such as the possibility that information on the cell might alert officers to an accomplice in the area or a related threat.
   The justices didn’t give an inch in protecting the privacy of our mobile devices from police. (The NSA will be a later story. Nothing regarding federal efforts has been brought before the court.)
   “Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans ‘the privacies of life. The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the founders fought. Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple — get a warrant,” the chief justice wrote.
    It is interesting to see such a senior group recognize the pervasiveness of the cell phone. They are right, just look around. Justice Roberts even posed what might be humor in a Supreme Court setting by noting that cell phones are so widely used, “The proverbial visitor from Mars might conclude they [cell phones] were an important feature of human anatomy."
    We applaud the court taking a stand on privacy, but it is troubling that what they say is so accurate -- our cell phones literally do define us. Or in the words of Justice Elena Kagan, “Most people now do carry their lives on cell phones.”