With each new advance in personal technology, so much of who we are as individuals becomes more pervasive, extending far beyond a material body. Our daily thoughts or habits can be put into a “cloud” on the Web. Google or Facebook may contain troves of personal history. Our electronic identities seem more transparent and less earthbound.
Because of these challenges to old notions of personhood, the Supreme Court issued a ruling Wednesday that comes down hard on police conducting arbitrary searches of cellphones used by people arrested for a crime. Such digital devices, from iPads to smart phones, can contain a record of nearly every aspect of a person’s life “from the mundane to the intimate,” stated Chief Justice John Roberts for the court’s majority. The proverbial visitor from Mars, he wrote, might conclude that cellphones are “an important feature of human anatomy.”
The ruling is not a total embrace of cellphone privacy. Police will still be allowed to search a phone in the case of an extreme emergency, such as an immediate bomb threat or a reasonable risk of evidence being destroyed. But during most arrests, police will need to prove “probable cause” to a judge and obtain a warrant before fishing for evidence of another crime in a person’s cellphone.
Protecting privacy is not simply a matter of avoiding arbitrary abuse by government. Yes, the Fourth Amendment ban on “unreasonable searches and seizures” was written by the Founding Fathers to prevent the kind of searches conducted by British soldiers in the homes of Colonial Americans. But privacy also helps individuals to thrive. It allows for freedom of thought, solitude for growth, and intimacy of personal relationships. These uses of privacy lie behind the heightened concern to maintain it.
“Modern cellphones aren’t a technological convenience,” Chief Justice Roberts wrote. “With all they contain and all they may reveal, they hold for many Americans ‘the privacies of life’.”
This ruling reflects the many legal challenges posed by new technologies, such as DNA analysis and GPS tracking. Judges are being asked to sort out the difficult legal distinctions that each new technology brings. In another ruling Wednesday, for example, the Supreme Court decided against Aereo Inc., a service that retransmits signals from broadcast TV to paying customers. The court said the service infringes on copyrighted programming. But as with similar cases, the court hinted it might be better for lawmakers to decide the deeper issues.
In 2012, the high court ruled against police being able to place a GPS tracking device on a suspect’s car without a warrant. Yet it ruled in 2013 that police could take a DNA sample of anyone under arrest, likening it to fingerprinting. In both rulings, the justices were sharply divided.
Such cases raise moral questions about personal autonomy and the presumption of innocence. The Constitution and previous court decisions can provide limited guidance. It is up to citizens to press lawmakers on how to resolve the issues posed by new technologies. Each person’s “new” identity in the digital universe depends on it.