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SCOTUS's digital revolution 

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  • The U.S. Supreme Court

In any number of high-profile cases considered by the U.S. Supreme Court in the term finished up this week, the typical split — five conservatives and four liberals with the occasional wander across the divide by Justice Anthony Kennedy — predominated. Justices split and often issued biting opinions in cases involving corporations' mandatory coverage of contraceptives, caps on overall contributions to federal political candidates, town councils' kicking off meetings with sectarian prayers, and the mandatory payment of union fees by public sector employees. In other cases where unanimity showed itself superficially — such as on the Massachusetts law mandating a 35-foot buffer zone around abortion clinics — deep divisions appeared just below the surface. There was one high-profile issue, however, on which there was a thorough unanimity that surprised many Supreme Court watchers: digital privacy.

Two companion cases — one from California and another federal case — centered on whether information gathered by police from searches of suspects' cell phones at the time of arrest could be admitted as evidence. In a unanimous decision last week, the Supreme Court, led by Chief Justice John Roberts, found that searches of cell phones may only take place after a warrant is obtained. In an era where the Supreme Court is prone to narrow decisions that require tealeaf reading by lower courts, the logic of Roberts' ruling was quite clear. It almost certainly covers searches of any other devices held by individuals and likely sets the stage for pro-data privacy rulings in cases involving governmental searches of data held by phone companies. In short, Riley v. California appears to have brought about a digital revolution in the legal arena.

What caught court observers off guard was that the sweeping decision comes from a court where a majority has issued a series of opinions providing broad power to collect evidence even in circumstances where police procedures and motives were suspect. Some have required the overturn of important pro-criminal rights decisions of the Warren Court era. Moreover, for a court majority prone toward originalist decisions that typically limit the rights of the disempowered, Roberts showed an awareness that the language of the Fourth Amendment isn't readily applicable to cases involving 21st century technology. In response to the Obama Justice Department argument that phones are the same as wallets and address books, Roberts scoffed: "That is like saying a ride on horseback is materially indistinguishable from a flight to the moon."

On a court that has showed itself a bit out of touch technologically at times in recent years — in the oral arguments on these cases, Roberts and Justice Antonin Scalia seemed shocked that individuals would carry more than one cell phone — Roberts appeared downright hip in chronicling the centrality of cell phones in society. Citing polling data on how most Americans are constantly tied to their phones, Roberts wrote that devices are "such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy." More importantly, noting an awareness of what is directly and indirectly available from a quick search of them, Roberts wrote that cell phones contain "a digital record of nearly every aspect of their lives — from the mundane to the intimate."

It makes some sense that the issue of data privacy brought together a polarized Supreme Court for it is that rare issue that also unites a polarized mass American public. Traditional liberals and libertarians alike are deeply concerned about governmental snooping of individuals' electronic lives, leaving only big government conservatives comfortable with government activism in this area. Indeed, advocacy groups like the ACLU, which have had tough sledding on issues ranging from abortion rights to immigration reform since the Republican tidal wave of 2010, have found digital privacy as one area of success in state legislatures around the country in the last several years through building coalitions with tea party GOPers. Such legislation even got some traction in the 2013 Arkansas legislature, where a series of bills by Democratic Attorney General nominee Nate Steel limiting police use of license plate readers and prohibiting employers and higher education institutions from gaining the social media usernames and passwords of employees and students passed easily.

In ruling after ruling announced this session, the court majority was clear in the immediate result but unclear on a case's meaning as a precedent for future cases. Riley v. California lacks such opaqueness. As most novel legal questions in American life are technology-related, it was a crucial one for the court to get right.

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