The Justices were intent in showing they understand tech today. Terms dropped: Twitter, Facebook, Fitbits, Airplane mode— AdamSerwer (@AdamSerwer) April 29, 2014
Bad news, guys: The Supreme Court justices apparently know just enough about the internet to track down all our great jokes about how they don't understand technology. At least, that seems to be a big takeaway from today's oral arguments in a pair of cell phone privacy cases. The justices, asked to decide whether law enforcement officials may search a confiscated cell phone of someone they've arrested without a warrant, were dropping all of the latest cool internet terms during oral arguments. Except for Justice Thomas. He doesn't generally talk.
MSNBC's Adam Serwer had some early observations from the arguments on the Justices' tech savvy during the Riley v. California arguments, including Chief Justice Robert's newfound grasp of a lot of specific mobile apps. Here's an exchange from the transcript with the attorney representing the petitioner in Riley v. California:
ROBERTS: I mean, what about something like Facebook or a Twitter account? There's no real .... there's no any privacy interest in a Facebook account is at least diminished because the point is you want these things to be public and seen widely.
FISHER: Well, Mr. Chief Justice —
ROBERTS: So I guess my question would be: Could you have a rule that the police are entitled to search those apps that, in fact, don't have an air of privacy about them?
FISHER: I think that would be extraordinarily difficult to administer that rule.
And Justice Sotomayor got into a discussion about the implications of a cell phone's airplane mode, while questioning Michael Dreeben, a deputy solicitor general at the Department of Justice who was in court supporting the state's defense of warrantless searches. Essentially, Sotomayor responded to an argument that suspects might be able to remotely wipe a phone before a search warrant is obtained by asking why law enforcement officers "can't...just put the phone on airplane mode?" to prevent it from accessing a network. Sotomayor also had this to say about the state's interpretation of what's fair game for a warrantless search upon arrest, based on proximity to the suspect:
SOTOMAYOR: Could I ask you a question about the extent of your theory? We're talking about smartphones, which are minicomputers. But your theory would apply to iPads, computers, anything that's, for example, sitting next to a person in a car, at their desk if they are arrested at their desk, anywhere if they are carrying it in their hand because you see a lot of people carrying the iPad or something comparable, a tablet of some sort. Your theory would permit a search of all of those things.
And then Roberts followed-up with a reference to the fitness app Fitbit. Fitbit! From the transcript:
ROBERTS: What if you have a device that doesn't have the broad information that a smartphone has, but only a very limited, like a Fitbit that tells you how many steps you've taken, and the defendant says, I've been in my house all afternoon, and they want to check and see if he's walked 4 miles. It's not his whole life, which is a big part of your objection. Is that something they can look at?
Overall, Kagan seemed to be the justice leaning the heaviest against the warrantless searches. “People carry their lives on cellphones,” Kagan said, prompting even Scalia — who was overall skeptical of the privacy argument against the searches — to agree: “It seems absurd you should be able to search that person’s iPhone because of an arrest for a minor crime," he said.
To put this in perspective: as recently as last August, Justice Kagan admitted that the Supreme Court as a whole wasn't really into using email, and that Facebook and Twitter were "a challenge for us." During oral arguments last week, Justice Scalia didn't know that HBO wasn't free over the airwaves. And Justice Breyer made his feelings on Twitter and Facebook known in 2010:
“If I’m applying the First Amendment, I have to apply it to a world where there’s an Internet, and there’s Facebook. And there are movies like The Social Network, which I couldn’t even understand.”
Although the high court's luddite tendencies have been a long-running joke, there are serious implications for their lack of literacy on rapidly-developing technology. This is the court, after all, that has to rule on the application of the law to those technologies, including in today's pair of cell phone cases. Does the vast amount of data stored these days on smart phones complicate the normally legal ability of law enforcement to search on and around a person being arrested, without a warrant?
Based on early reports, the court could end up with a mixed decision, presenting some sort of middle ground, in this pair of cases. But observers seem to think the court as a whole is leaning towards some sort of limitation on when law enforcement officers can conduct warrantless searches.
Probably two votes, maybe three, for rule that a warrant is always required.— Orin Kerr (@OrinKerr) April 29, 2014
As always, we'll have to wait for the actual opinions to know what the justices really think.