There’s been much discussion – and derision – of the US supreme court’s recent forays into cellphones and the internet, but as more and more of these cases bubble up to the high chamber, including surveillance reform, we won’t be laughing for long: the future of technology and privacy law will undoubtedly be written over the next few years by nine individuals who haven’t “really ‘gotten to’ email” and find Facebook and Twitter “a challenge” .
A pair of cases that went before the court this week raise the issue of whether police can search someone’s cellphone after an arrest but without a warrant. The court’s decisions will inevitably affect millions. As the New York Times editorial board explained on the eve of the arguments, “There are 12 million arrests in America each year, most for misdemeanors that can be as minor as jaywalking.” Over 90% of Americans have cellphones, and as the American Civil Liberties Union argued in a briefing to the court, our mobile devices “are in effect, our new homes”.
Most people under 40 probably would agree police should never have the right to rummage through our entire lives without a particular purpose based on probable cause.Yet during arguments, Justice Roberts insinuated that police might reasonably suspect a person who carries two cellphones of being a drug dealer. Is he unaware that a large portion of the DC political class with which he associates – including many of his law clerks – carries both a personal and business phone, daily? The chief justice of the Supreme Court of the United States may have proved this week that he can throw out tech lingo like “Facebook” and even “Fitbit”, but he is trapped in the closet from reality.
This is not the first time justices have opened themselves up to mockery for their uninitiated take on tech issues. Just last week, in the copyright case against Aereo, the justices’ verbal reach seemed to exceed their grasp, as they inadvertently invented phrases like “Netflick” and “iDrop”, among others. Before that, many ripped Justice Roberts for seemingly not knowing the difference between a pager and email. And then there was the time when a group of them tried to comprehend text messages, or when the justices and counsel before them agreed that “any computer group of people” could write most software “sitting around the coffee shop … over the weekend.” (Hey, at least Ginsburg reads Slate.)
The supremes tend to do better on tech cases when they avoid engaging directly in the actual technical substance of technology. They received praise for ruling, 9-0, two years ago that police need a warrant to place a GPS tracker on someone’s car. Even then, though, Justice Alito ridiculed Justice Scalia’s controlling opinion for determining such a modern issue “based on 18th-century tort law”.
When it comes to the future of tech policy in the US, this week’s cellphone arguments are just the tip of the iceberg. Right now the FBI is engaged in all varieties of warrantless surveillance, using a variety of devices. Most critically, the agency thinks it can get our mobile location information, which reveals the most intimate details of our lives, without a warrant. The sharp split in lower courts will only get more pronounced over the next year.
Other cases percolating through the justice system address the question of whether police can compel you to hand over the password to your devices. Given that the right to not self-incriminate is spelled out in the Fifth Amendment, and that it parallels between login credentials and other information stored in your head, compelled decryption may seem antithetical to the Constitution. But in cases involving encrypted hard drives, the government has argued otherwise.
That’s not all: internet radio services, out-of-control software patents, and whether online posts should be judged the same as traditionally protected speech – all of these may all bubble up to the high court soon.
And remember, just months before Edward Snowden became a household name, the ACLU was in front of the supreme court arguing the Fisa Amendments Act, one of the primary laws at the center of the NSA scandal, was unconstitutional. The court cowardly dismissed the case 5-4 on “standing” grounds, and never ruled on the merits. One of the first things Snowden reportedly said after his disclosures when the ACLU became his legal counsel was: “Do you have standing now?”
Do they ever. Thanks to Snowden’s revelations, a second flurry of lawsuits – 25, by The Verge’s count – have cropped up all over the country. Even NSA advocates, who for years tried to prevent courts from ruling on the subject, are suddenly suggesting the supreme court should weigh in, hoping it’s their only way out.
Tellingly, the NSA’s legal house of cards is pinned on a horribly outdated case from the 1970s that ruled the government could get the phone records for one suspect under active investigation, for a short period of time. The government has morphed that to mean they can collect all sorts of metadata, on everyone, forever.
The good news is, if the justices can avoid fixating on technical details – the very kind they don’t seem to understand – the Roberts Court may still come to the right decision. After chiding the justices in Aereo, Vox’s Tim Lee argued it’s actually a good thing the justices are not technically savvy, because it allows them to see the bigger picture, citing that they have “done a remarkably good job of crafting a sensible body of patent and copyright laws in the past few decades”. (They also delivered an encouraging decision on patent trolls just this week.)
There’s evidence, in recent privacy opinions, that at least some of the justices understand how technology is used, even if they don’t use it themselves. As Justice Sotomayor wrote in her concurring opinion in the GPS case:
It may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties…This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks.
Encouragingly, Justice Kagan made similar comments this week.
But as Electronic Frontier Foundation’s Parker Higgins convincingly argues, it’s not the justices’ lack of personal experience with technology that’s the problem; it’s their tendency to not understand how people use it. Returning to Justice Roberts’s concerns about villains with two phones: if he is in fact unaware of how common that behavior is – he certainly didn’t watch Breaking Bad – then that suggests a major gap in his understanding of society.
This lack of basic understanding is alarming, because the supreme court is really the only branch of power poised to confront one of the great challenges of our time: catching up our laws to the pace of innovation, defending our privacy against the sprint of surveillance. The NSA is “training more cyberwarriors” as fast as it can, but our elected representatives move at a snail’s pace when it comes to the internet. The US Congress has proven itself unable to pass even the most uncontroversial proposals, let alone comprehensive NSA reforms: the legislative branch can’t even get its act together long enough to pass an update our primary email privacy law, which was written in 1986 – before the World Wide Web had been invented.
So the future of our privacy, of our technology – these problems land at the feet of a handful of tech-unsavvy judges. Future nominees to the bench should be quizzed on their knowledge of technology at confirmation hearings. And while many have made the argument that the secret Fisa court should employ a technologist to explain technical issues to the less technical judges, the same can be said of the supreme court. It’s time to get the net already.