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The Fourth Amendment protects us from “unreasonable searches and seizures” by the government, but today’s technology is introducing a whole new set of questions about what qualifies as “unreasonable.” Judges around the country are grappling with requests from law enforcement to access suspects’ emails, cloud storage and sometimes their computers’ built-in cameras. Meanwhile, a case before the U.S. Supreme Court asks whether police have the right to search someone’s cellphone at the time of arrest. Kojo looks at the future of the Fourth Amendment in the digital age.
- Orin Kerr Fred C. Stevenson Research Professor of Law, The George Washington University Law School
- Craig Timberg National Technology Reporter, The Washington Post
MS. JEN GOLBECKThe writers of our Constitution guaranteed us protection from unreasonable searches and seizures. But in the two-plus centuries since they penned those famous words, new technology has transformed the way we live. Today, our smartphones alone might contain more personal information than the Framers had in their entire homes. And as we store more of our photos, videos and conversations on our devices and in the Cloud, law experts and courts have had to reconsider what a reasonable expectation of privacy is.
MS. JEN GOLBECKStirring new debates over what's unreasonable for police to search without a warrant. The latest of which is playing out in U.S. Supreme Court. Joining me to discuss is Craig Timberg. He's the Washington Post technology reporter. Thanks for being here.
MR. CRAIG TIMBERGIt's my pleasure.
GOLBECKSo, let's start with the Supreme Court. They're considering two cases. In both cases, the defendants were arrested by police for some offense. But during the course of the arrest, police search their cell phones and found evidence that linked them to a crime that was far more serious. What questions did these cases raise about the Fourth Amendment rights in the digital age?
TIMBERGIt's interesting to think about the Fourth Amendment, which of course comes from -- is one of the original batch of amendments. And it had to do with the Founding Fathers being concerned about the type of searches that British soldiers did of their homes and their compatriots' homes, you know, back in the 1700s. And the effort to update the Fourth Amendment has been frankly very messy.
TIMBERGEvery time you get a kind of new technology, telegraphs, telephones, computers, now smartphones, there's had to have been a reconsideration of, you know, what is reasonably ours that the police can't get to unless they have a warrant? And that's at the heart of this case. Is the smartphone, this thing you carry around in your pocket that tracks every communication you have almost everywhere you go second by second has -- often have just files, pictures of you and your kids and your kids. Is that equivalent to your home, in some sense?
GOLBECKSo some of the technology has been around for a while that's been brought up in this case, in both of these cases. One of them actually involves flip phones and these cases are being handled separately. The smartphones versus the flip phones. What's different about the way we use technology today that raises these questions about our Fourth Amendment protections? It's different than what we have, say, with telegraphs or telephones.
TIMBERGWhen you use a telegraph or a telephone, you are actively engaging in the technology, right? You are picking up the phone or you are going to a telegraph office and saying, I'd like to send this message to so and so. And the idea that that would be intercepted by the government while presumably not a comforting, you should kind of sort of knew that that was a possibility. The smartphones are just incredibly invasive parts of our lives.
TIMBERGAnd that's great if I'm lost in the city and I can flip on Google Maps. I'm really happy to get un-lost. At the same time, my phone knows everywhere I go all the time and it really knows when I sleep, it knows what my alarm clock is. It knows, really, almost everything about me. And so, that is -- it feels like a, categorically, a different thing than, you know, the rotary dial phone that I grew up in -- with where I just I knew I was talking.
GOLBECKRight. You also can join the conversation. What protections do you think we should have from government searches and seizures in the digital age? And do you think police should be able to search someone's phone without a warrant when he or she is arrested? You can join us by calling 1-800-433-8850, by emailing us to email@example.com or get in touch with us through our Facebook page or by sending us a tweet to @kojoshow. All things you can do with your smartphone in your pocket.
GOLBECKOne of the issues that has come up in these Supreme Court cases is the original offense that people are arrested for and how that goes over to searching their smartphones. So, something that came up in the discussions was if I was pulled over because I wasn't wearing my seatbelt and the police didn't have a warrant, could they take my smartphone since I wasn't wearing my seatbelt and go through everything in there? Is that okay?
GOLBECKThis is something that I think a lot of our listeners, a lot of people just listening in say that's a pretty big jump, right? You can see anyone that you want to arrest, find some little traffic cause for pulling them over and then looking at their smartphone. Does the magnitude of difference there, is that an issue that's coming up in these cases as dictating where it might go?
TIMBERGWell, these are issues that are sometimes hard to -- hard. One of the people who's in jail because of what was on in the smartphone in one of the two Supreme Court cases is, you know, is charged with, I believe, attempted murder. So these are very serious things. And it can be hard to separate out the gravity of the offense what you might think more broadly of as the rules of the road, right?
TIMBERGWhat police can do in their ordinary interactions with all of us, most of us aren't attempted murderers, right? At the same time, you know, I live across the street from a park where everybody walks their dog without a leash. That's actually against the law, right? I've been known, I hope no police are listening, but I've been known to have a beer in that park, right, that's against the law.
TIMBERGAnd that's -- it's easy to forget how many routine interactions we have with authorities where we are on the wrong side of the law. You speed. You don't update your license plate. And the question at the heart of this debate right now is, does that open you up to a virtually infinite search of whatever you happen to be carrying at that point and whatever information is connected to the devices you're carrying, including Cloud services, right? I mean, my email account is, you know, that data is somewhere else but you can get to it from my phone.
GOLBECKThat for me, as a technologist, is the most concerning part of this because my phone goes everywhere with me. It's next to me in bed. It's every room I'm in except in the studio because it'll ring and tell me one of these things that it's notifying me of. And I have absolutely all of my emails and every single email that I've sent for the last 10 years you can get to on my phone. All of my pictures, which I don't necessarily want people looking through even though there's nothing terrible in there. All of my social media posts and information about all my friends, right? So you can...
TIMBERGAnd banking stuff and shopping stuff.
TIMBERGAnd some people have these sensors now that track how often -- how many steps they take or how they sleep.
GOLBECKI'm wearing one right now.
TIMBERGRight, exactly. The amount of data that we -- they talk about sort of digital exhaust, it is stunning and it is, on some level, terrifying.
GOLBECKAnd so I think that there is this question of, okay, like, if I had a book in my car, a scrapbook in my car, the police might want to pick that up. They say they're looking at it, we're going to see what's in there. But that's a lot different than basically everything I've done for the last eight years. Say, you can to, from my cell phone, like pretty much everything I've done is one there. That is a really intrusive search.
GOLBECKAnd I say personally it's hard for me to see how it's reasonable that police should have access to every single one of those digital traces because I had my dog off the leash or I wasn't wearing my seatbelt.
TIMBERGSo let me just play devil's advocate on this one. You know, policing is tough and it's easy to forget in our every day lives that police frequently are, not merely trying to solve crimes that can protect all of us, but they're often in real peril. And one of the key Supreme Court precedents here is actually about the ability of police to search a suspect or even in a kind of face-to-face encounter to look for weapons.
TIMBERGAnd you obviously would like the police to be able to check somebody for weapons rather than put them in their car when they're still carrying gun and such. And, you know, I think many of us don't want to draw this line in a place that means that murderers are walking free routinely or evidence that's readily available doesn't, you know, is not available to solve really serious crimes. The question becomes, but where is this line, right?
TIMBERGYou don't want them to have everything. You want their hands tied so tightly that they can't reasonably investigate a crime, particularly a crime that may be in progress or a crime that is about to occur or maybe that just occurred. And so, that's why the Supreme Court is taking this up because these are genuinely hard issues, I think.
GOLBECKAnd as you point out, these are serious crimes that the people in these cases were arrested for. One of these suspects was linked to a gang shooting. He had firearms in his car. He was driving on a suspended license. But I like your devil's advocate position. But for me, the issue comes up in that this is an issue of whether or not police can do it without a warrant, right? So there's a separate argument to be made, should police be able to get a warrant for these kinds of things?
GOLBECKBut it's another step to say they can just take your phone and search it without a warrant, without really any suspicion that I've done something wrong. And it is a little bit different than whether or not I have a weapon, right? But the police -- and so let's hit on this point. The police say that one of their fears is if they don't search the phone right away before getting a warrant that I could delete potential evidence.
TIMBERGAnd not just that, there's a fear that evidence could be deleted remotely, right? And -- because all of these things are wired in everything else and, you know, it's not -- it's going to take a huge stretch of the imagination just -- to conjure a scenario in which one member of a gang, for example, has been picked up and there is -- his compatriots somewhere else realized it and figured out how to wipe his phone free.
TIMBERGI don't know if that's possible, but it doesn't seem like a huge stretch given where the technology is. And I also, you know, the issue with the warrant is a serious one. One of the key questions here is how readily can this evidence be destroyed if the police don't get access to it right away. And there's a lot of misunderstanding about this. I mean, you know, many people have a pin code, for example.
TIMBERGMany people use encryption. And so the police are concern that if they don't get access to these phones quickly that the data could be destroyed or lost in some way, shape or form. And, again, these lines, they're just not all that simple, I think.
GOLBECKI think that's right and that's something that you read in a lot of coverage of this case that where you draw the line, what crime a person has to have committed to potentially allow this. It's something that some people think you want to draw but like how you actually come up with that line is really difficult. I also like that there's a wide range of technological issues here because, you're right, there are these services that can -- if your phone get stolen, you can go online, log in and delete all of the content that's on your phone to protect it.
GOLBECKBut there's a flip technology that police have access to that I think was mentioned in these Supreme Court cases called a Faraday bag, which I love as a scientist. So a Faraday cage is something that's been around for a long time. And it's kind of a wire mesh cage that will protect electrical signals from getting in. These are little wire mesh bags. You can put a phone in there, and then it can't have any remote access.
GOLBECKIt can't get a cell signal. It can't be deleted. And I think where all of these technologies fit in and how they help us make decisions about what's reasonable makes sense now on one hand. And on the other hand, it's going to change in five years and they'll be completely different technologies to reason about. And that's hard for judges trying to set legal precedence.
TIMBERGRight. Sometimes it can be hard to see through the clutter of the technology to the whatever the underlying constitutional line ought to be, I think. And I do like the idea of the bags, but so is every police officer in the country that carry one of these bags, maybe. But you can understand that if you were representing the police officers of the world, you would want to make sure that every police officer in the country had one of these bags and was trained on how to use it properly.
TIMBERGAnd who's to say that the most sophisticated criminal organizations don't start rigging phones in a way that automatically deleted a certain point for, you know, and that wouldn't require, you know, outside action. You know, it's tricky stuff, I have to say. And, you know, we haven't really touched on how the companies have a role in all this, I mean, in protecting your data in new and different ways as well.
GOLBECKWe'll get there.
TIMBERGYeah, it's a -- there's a lot -- there's a lot of moving parts in all this.
GOLBECKThere really are. So your opinion, when it comes to the information on our smartphones and, say, our laptops, our iPad's, what level of privacy do you think most of us expect at this point?
GOLBECKIt's a hard one.
TIMBERG…it depends. I mean, it depends on -- people have different kinds of relationships with their government. You know, I always talk about my mother, who is a teacher in Maryland. It's a very blue state and I remember when the Snowden stuff started breaking, she's like, "Well, you know, I really trust Barack Obama." And you think, well, okay. That's fine. But, you know, governments do change hands. And there's a lot of layers of governments.
TIMBERGAnd so I think people -- different people have very different views on this. And I also think that your views may change very quickly if you are pulled over and a police officer suddenly has your phone and you think, oh, wait a second, what do they suddenly know about me? And it -- these issues can seem very abstract until they can, I imagine, be terrifyingly concrete.
GOLBECKYou can also join the conversation. What expectation of privacy do you have when you're using your cell phone, tablet or computer? When you're out in public? What about in your home? Where do you expect more privacy? You're listening to "The Kojo Nnamdi Show." And we're going to continue our conversation with Craig Timberg about the Fourth Amendment in the digital age in a moment. Stay with us.
GOLBECKWelcome back. I'm Jen Golbeck, from the University of Maryland, sitting in for Kojo Nnamdi. I'm talking to Craig Timberg about privacy in the digital age. If you'd like to join us, you can call 1-800-433-8850. What expectation of privacy do you have for your cell phone, your tablet or your computer, if you're, say, pulled over or fined for public drinking? The Supreme Court's talking about this now and we're going to go to the phones and hear some of your questions about this. Let's start with Terry, in Beltsville, Md. Terry, you're on the air. Go ahead.
TERRYWell, thank you. I would like to make a few comments about what seems to be relevant issues in my cell phone. If I'm pulled over for drunken driving, I have not yet been found guilty of drunken driving. I wouldn't see where a policeman would have any right whatsoever to go through my cell phone for having done nothing yet, or having been proven guilty of anything. As far as a safety issue goes, I could certainly understand where a policeman would want to make sure that I was frisked and that anything that I had on me was removed.
TERRYBut my cellphone doesn't pose any more of a safety issue than my car keys or my wallet or the change in my pocket. So I kind of find that issue bogus. As far as the cellphone being erased, if it's thrown in Faraday bag, as you have already commented on, it would be safe from that. If the battery is pulled out it would certainly be safe from that. And if we're going to have a tough time teaching our policemen how to use a Faraday bag, which is very similar to a Ziploc bag, then I'm not sure that they should be on duty.
GOLBECKThanks for your call, Terry. Craig, you've been playing devil's advocate. You don't have to do that now, but your thoughts would be great.
TIMBERGWell, they certainly would check to see if you had a bottle of whiskey in your pocket. Right? I mean, so -- and I think that that's a pretty good -- it's a useful case because, you know, there's evidence of the crime you're believed to be committing at that moment, but both of these cases before the Supreme Court, I'm pretty sure involve situations where something like, you know, a routine encounter with the police led to evidence of other sorts of crimes.
TIMBERGAnd that, I think, is more what makes this a hard case. In that it's not that they're trying to prove that you have committed a drunken driving offense, but that if they open up your phone and they find out that you, you know, have been texting with someone about murdering your wife, that they want to be able to stop that.
GOLBECKYou can join us if you have thoughts on privacy and technology by calling 1-800-433-8850 or emailing us at firstname.lastname@example.org. I'd now like to bring in Orin Kerr. Orin is a professor at George Washington University Law School, specializing in computer crimes. Thanks for joining us.
PROF. ORIN KERRGlad to be here.
GOLBECKYou attended the oral arguments at the Supreme Court that we've been discussing. Can you just give us your impressions about the issue and how things went in the Court?
KERRYeah, I think the justices were really struggling to figure out how should they apply the timeless principles of the Fourth Amendment to this very new set of facts. The justices were very much aware of the fact that computers are kind of a game changer. That there's just so much evidence that can be stored on a computer, that allowing the government to look through a computer every time there's an arrest would really expand government power. And the question that the justices were really struggling with is what do you do then? Sort of what should the new Constitutional rule be?
KERRAnd it really wasn't clear from the oral arguments, in the two hours of arguments that the Court held, as to exactly what a new majority rule might be. So we're really going to have to wait and see what the justices do with the problem, but it was clear that they were aware of the new dynamic of computers.
GOLBECKThe unreasonable search and seizure clause in the Fourth Amendment has been subject to plenty of disputes throughout the last two centuries. To what extent do you think these new technologies are creating more room for debate?
KERRI think new technologies are always creating new questions in terms of how to interpret the Constitutional ban on unreasonable searches and seizures. It's inherent in technological change that government power is either going to expand or it's going to contract. That people are going to be able to do things they couldn't do before. The government may have new surveillance tools they didn't have before. And that can kind of throw the balance of the Fourth Amendment out of whack. And an interesting example of this, historically, is the role of the automobile.
KERRSo in the 1920s it was the prohibition era. And cars, automobiles became very popular at sort of, you know, beginning around the World War I era, 1920s everybody has cars. And that meant that if you had alcohol that you were trying to transport, you could do it in the back of a Model T Ford and be able to transport to your alcohol. And this was a major problem that the Supreme Court, in a case called Carroll v. United States in 1925, when do you allow the government to search a car for illegal alcohol.
KERRAnd the justices struggled with how to update the Fourth Amendment for searching a car in the 1920s. And came up with automobile specific rules in the 1920s. And I think the computer will be to the 21st century Fourth Amendment what the car was to the 20th century Fourth Amendment. It's sort of the next big technology which will require the Supreme Court to update the rule.
GOLBECKSo following up on that, do you think there could be computer specific rules that were flexible enough to apply to all the new devices and software and apps that we'll inevitably see developed in the coming years?
KERRYeah, I think the justices are going to have to create some sort of computer specific rule. And the tough question is what rules to create. It's a bad idea to try to say, well, this is how iPhone's work, for example. We have this concept of apps and there's this app and that app. And so this app can be searched, but maybe not that app. That would be a bad idea.
KERRThe justices have to take the long view and think, we've got these new computers that people are carrying with them wherever they go, and it has so much storage capacity, there needs to be a rule that is not just for the iPhone 5, but rather for all computers that are stored on -- that people are carrying for, you know, the next 50 years. They need to take the long view to create that rule.
GOLBECKLet's take a call now from Joe, in Washington. Joe, you're on the air. Go ahead.
JOEOkay. One of the things that I wanted to point out -- I was listening to the individual talk about the cellphones or the debate on the cellphones and whatnot. And the most technical sense, once the police officer stops an individual, that police officer is technically restricting the movement and the opportunity for that person to move on. Consequently, in the technical sense, the person is under arrest. Now, unfortunately I'm going to make this area even more gray, I guess.
JOEBut unfortunately, if that person is being -- once that person's under arrest, the police officer does have the authority -- the summary of transport that individual to a precinct or district or cell block. And once that happens, then all of that property, including the person's automobile essentially becomes the responsibility of that police officer to place that on a property book, to examine it, to make certain that there's no damages, so that once that person is released, that that person can't come back and say, well, you know, the police officer damaged my cell phone, damaged my automobile or any other property, etcetera.
GOLBECKThanks, Joe. That's an interesting perspective, and, Craig, kind of echoes some of the points that you were making before, I think.
TIMBERGYeah, that's right. I mean, police do have pretty wide-ranging authority when we encounter them. And we encounter them for all sorts of reasons. And, you know, there are good consequences of these rules when it comes to preventing crime and solving crimes. But I think what's at the root of the debate now is there just something qualitatively different about a smartphone?
TIMBERGIs there just so much on it that it -- on some level more resembles the kind of private papers one might traditionally have kept in a locked file cabinet in your private den, instead of something that you just use to pick up and talk on?
GOLBECKThe Supreme Court justices aren't the only debating how to reconcile the Fourth Amendment with the realities of the digital age. Lower level judges are grappling with similar questions. And, Craig, you recently reported on a group of federal magistrate judges who are rejected many law enforcement requests for digital evidence. Why do they think these demands conflict with the Constitution?
TIMBERGSo it's funny to have Professor Kerr on the line, because I actually interviewed for that story. And the gist of that is that the -- some of the magistrate judges whose jobs involve approving search warrants and gag orders and subpoenas and such things, have become over the past few years a lot more skeptical of government requests for data. In part because they realize how expensive the authorities can be and also, with the Snowden revelations of last year, there's just a heightened sensitivity to privacy intrusion.
TIMBERGSo what I was writing about was this kind of this, you know, almost a loose coalition of magistrate judges who are really pushing back against data requests. They're forcing prosecutors and police to narrow them, and in some cases they're rejecting them outright, and saying, look, you just -- if you're going to take this kind of information, you need to be closer to a real case. You need to have probable cause.
GOLBECKAnd, Orin, higher courts have overturned some of these magistrate judges' decisions. Why do think there are these conflicting views on digital evidence within the hierarchy of the justice system?
KERRI don't think it's so much that there are conflicting views among the hierarchy, as that there's just conflicting views generally. So just different judges are going to look at these issues differently because they're pretty novel questions. And so most magistrate judges are actually approving the government's court orders. It's a fairly small number of magistrate judges that are rejecting these applications, but when those few numbers are appearing, it generates a lot of headlines because it's a -- usually what the magistrate judges are doing is not only denying the government's application, but publishing opinions.
KERRAnd for the lawyers out there that's a significant step, because it basically puts a legal opinion on the books that says, here's a precedent for other judges to follow. And it sort of spurs the conversation, requires the government to appeal, and then it becomes a big issue for the lawyers and the law professors and the journalists to debate and discuss. So it's really a way of starting a conversation on what the different rules of surveillance need to be.
GOLBECKAnd that's why we're here. Let's take a call from Mike, in Herndon, Va. Mike, you're on the air.
MIKEHi, there. I want to propose a quick thought experiment that reflects maybe not the current reality but something we're very close to. What if tomorrow there was a device that they could basically point at your head and record everything that you've been thinking for the past two weeks? Right? And then they go off and look at it. Well, I submit that the way people are using smartphones and digital storage technology really is an extension of their brain, and, you know, being able to think about and deal with more things at once.
MIKEAnd that those two cases are much closer alike then it might look at first. And I think, you know, we're pretty close to being there, with respect to the way things actually get used. So I'm curious as to what people think would happen if the brain recorder showed up tomorrow.
GOLBECKWell, Mike, I'll add that I actually have a synced file on my smartphone and up in the cloud called Brain Annex, where I just stick all kinds of things that I would try to remember in my brain, but I am a little too busy to remember them all. So I think we're close. Craig, do you want to take that first?
TIMBERGI'm just thinking about how badly I need a brain annex.
GOLBECKIt's a great idea. You should try it.
TIMBERGYeah, I know, but the issue that the caller raises is a good one. I think that it's certainly true that there's a degree of intimacy and kind of porous borders between our brain and this sort of seemingly external technology that would have been true 100 years ago or 200 years ago or maybe even 30 years ago. It's funny, you know, you read sort of old correspondence between, you know, they're saved from historical figures. And there's just this formality about it. Right? That's not how I communicate when I'm texting my wife.
TIMBERGIt just isn't, you know. Or when I'm emailing my friends. There is -- the technologies are getting closer to the insides of our brains. I think there's no doubt about it. And it makes these questions of where, you know, where the Court draws these lines all the more urgent to enunciate in a way that we can understand so that we can make our own decisions about what to share with Brain Annex or not.
GOLBECKSo one last question for both of you. Give me a short answer and Craig, we'll start with you. A lot of these digital evidence cases involve a third party, which is the tech companies. Based on your coverage of the tech world, what role do you think email service providers, social media companies, app creators will play in debates about the Fourth Amendment in the digital area?
TIMBERGYou know, the tech companies are all really terrified and angry by the Snowden revelations. And they were particularly concerned that the customers around the world and future customers were going to never trust them again. And so there's a very concerted push in the legal front to be tougher with courts and tougher with police and to protect the data of their users better. So that is one of the most concrete consequences of the Snowden revelations. And the tech companies are really playing hardball with the government, in a way that they didn't so much certainly five years ago.
GOLBECKAnd, Orin, I'd like to end with a quick answer from you. Craig reported in the Washington Post that these tech companies are increasingly rejecting subpoenas for digital content from law enforcement and asking for a warrant instead. So you can just give us a quick answer, help us understand why the distinction's important.
KERRYeah, so when the government goes to a third-party provider, like a Google or a Facebook, and requests information or demands information with a court order, that company has lawyers that can say, we don't think this court order is good enough. And they can reject that and force the government to either got to a court to demand compliance or try to negotiate exactly what the privacy level is that the government has to satisfy.
GOLBECKWe're going to have to leave it at that. I'm sorry, Orin, we're running out of time. Orin Kerr and Craig Timberg, thanks for joining me. I'm Jen Golbeck, sitting in for Kojo. Thanks for listening.
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