Daily Archives: April 29, 2014

What to make of oral argument in the cell phone case

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Wow.  After reading 130 pages of argument transcripts from the Riley and Wurie cases, it is clear to me that technology is really beyond the justices.  And yet, they wanted to sound hip, and be up on all the latest things, by asking questions like “Your brief suggested a limitation with respect to access to the iCloud.”    The iCloud.   Apparently Justice Sotomayor owns an iPhone, and thinks cloud storage is “iCloud storage.”   

But I digress.  There was plenty of  skepticism among the justices who spoke about considering a search of a phone’s contents to be the same as anything else incident to arrest.   Justice Breyer, Sotomayor, Ginsburg, Alito, and even Chief Justice Roberts all voiced concerns — with much discussion about reasonable expectations of privacy.

Justice Scalia surprised me, and quite frankly, disappointed me.   He seemed to think the law was clear, incident to arrest you can search things that are in the arrestee’s persona and within their reaching distance (although he didn’t speak much about Chimel).   He did seem to suggest that Arizona v. Gant’s “reasonable to believe that further evidence of the crime of arrest” might be an important modifier.   But not once, did he acknowledge that the cell phone was an “effect.”  In the past two terms, Scalia has argued that physical intrusions on constitutionally protected places — one’s person, house, papers, and effects, represents a trespass — and is an unreasonable search.   He has always framed his arguments in terms of what the Framer’s of the Constitution would have thought the Fourth Amendment protected.  And given his decisions in Jones and Jardines, this could have been a slam-dunk argument.   But he didn’t make it.    Yet, he also was largely silent for most of the two hours, and did not ask many questions at all.  I am uncertain what to make of his lack of participation.  Maybe he had a cold.   Who knows.

Yet, there seemed to be concern about allowing police to have full access to all of the contents of an arrestee’s phone without a warrant.   The Court explained the rationale for the warrant – and having a neutral magistrate to make the decision about whether to issue a warrant — seemed to take a large amount of the Court’s time.    Justice Breyer made a strong argument for why a warrant and magistrate is important.  

The Court seemed to go far afield from the facts of both cases in the extended discussion given to encrypted phones and the ability to “buzz” them to automatically wipe the phone’s contents.  It seemed a bit surreal, as if it was out of a science fiction movie, and did not seem to reflect reality, or much understanding.  

The Chief Justice seems to misconstrue privacy interests in social media, but no other justices appeared to accept his arguments.  He even claimed that Facebook users had basically no privacy.   (His argument was countered that a Facebook account opens things to some but not all people).   But he also seemed skeptical of allowing full access to a phone. 

I would love to be a fly on the conference room wall on Friday when the Court decides the case.  But Sotomayor, Kagan, Ginsburg, Breyer, Kennedy, Alito, and perhaps Roberts seemed to support limits on police searches of phones.   I can’t even pretend to categorize where Scalia will be.   And Thomas never spoke.   

And now we wait.  

The importance of a warrant

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The point of a warrant is that a person who is not involved and is objective listens to what the policeman is saying, knowing that

sometimes, like me or any other human being, a policeman can get a little carried away. So if, in fact, he does show the warrant, that there is this basis, you issue the warrant. Many, many and if he doesn’t you don’t. It isn’t because they’re difficult legal questions. It’s just you want that third dispassionate mind to review what the facts are.

Justice Breyer, on the importance and purpose of a warrant,  US v Wurie, oral argument, April 29, 2014.

No Mr Chief Justice, all social media is NOT designed to be made public

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Still waiting for the full transcripts and audio from today’s oral argument in the cell phone search cases, but the NYT’s brief report has the Chief Justice quoted as saying  that phones also contained “information that is specifically designed to be made public,” mentioning Facebook and Twitter.”

Perhaps this is true for twitter.  When I tweet, it is public.   It is not likely to be seen by people except those who follow me, but it can be found easily enough.  Same with this tumblr.   If I tag this post, it can be easily found, otherwise, it is read – maybe, if I am lucky – by those who have chosen to follow me.    I may very well be speaking to myself.   

But Facebook is different.  I have PRIVACY settings, so that if you are not one of my “friends” you DO NOT SEE ANYTHING. Get that, PRIVACY settings.  Yes, I put a lot out there on Facebook, but I decide WHAT I share, and with whom I share it.  My privacy is intact.  

It is true if a cop takes my phone (and manages to get past my lock screen), he could easily enough click on Facebook, and SEE what I have posted.   And see who I have texted.  And see what apps I run.   Or what music I listen to.  Or the photos I share with followers on instagram. (Mostly he will see lots of photos of my dog Gracie, my cat Jazz, and frequent references to bacon).    But when he does that, he is doing it without my permission, and is violating my right to be free from unreasonable searches.  

My privacy has nothing to do with having something to hide.   Privacy is about choices; about control over information.  About control over what information I want to disclose to the government, and what information I want to keep to myself, or to keep to my group of friends.

Sure, a friend could share something I post with law enforcement.  I get that.  But King John Roberts is wrong in thinking that social media is designed to be made public.   He clearly does not understand what social media is about.  

My two month vigil of anticipation over whether the Supreme Court will acknowledge that we the people have a reasonable expectation of privacy in the contents of our cell phones begins now.  

Freedom of Speech vs. contract law: a very simple primer

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“Congress shall make no law abridging the freedom of speech, or of the press.”

Freedom of speech applies to restrictions by government, not by the NBA. Like or hate what the NBA did, the league did that as a matter of contract law pursuant to its rules, and the contract it signed with the owner of the clippers as a part of the league. It is not a question of freedom of speech.

– A message from your friendly constitutional law professor

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