Posner on SCOTUS and Privacy at Supreme Court Breakfast Table

Supreme Court Breakfast Table: How exactly does this court know how significant the privacy interest is?
Eric Posner
Slate
June 25, 2014

The question for today is how well the Supreme Court is grappling with new technology. In Riley v. California, the court decided that the police cannot read through the cellphone taken from someone they arrest without first obtaining a warrant. In ABC v. Aereo, the court ruled that a newfangled system for transmitting television programs over the Internet violated the copyrights of the broadcasters who own those programs. 

Last year, Justice Antonin Scalia famously wrote a separate opinion in a case involving the patentability of a genetic test in which he said of the majority’s discussion of the “fine details of molecular biology” that “I am unable to affirm those details on my own knowledge or even my own belief.” Scalia did not explain how he could agree with the majority’s holding without understanding the facts of the case, and one got the distinct impression that he did not think the majority understood the facts of the case either. A molecular biologist I know concurs.

Fortunately, Riley involves a piece of technology that we all understand. Riley, the defendant, possessed a smartphone, which the court helpfully defines as “a cell phone with a broad range of other functions based on advanced computing capability, large storage capacity, and Internet connectivity.” Another defendant in the case owned a flip phone (“a kind of phone that is flipped open for use and that generally has a smaller range of features than a smart phone”).

Various earlier opinions established that when the police arrest someone, they are allowed to search his person for dangerous items and contraband. They can flip through his wallet. They can look at personal photos he may be carrying. They can even read his diary if he happens to have it in his pocket. Prosecutors can then use this information, if it is incriminating, to convict him of crimes. So if they can do all these things, shouldn’t they also be able to flip through his phone, and then use the information they find there—addresses, incriminating photos, messages—to convict him of crimes?

Faculty: 
Eric Posner