The Supreme Court’s 5-4 ruling that Hobby Lobby doesn’t have to pay for its employees’ contraceptives is getting a lot of press this week, most of it negative. That’s a common reaction to high-profile decisions issued by the conservative-majority Court these days, public confidence in the judicial branch of the federal government is currently at its lowest point since Gallup began tracking it in 1973. The fact that the Supreme Court’s 30 percent approval rating looks good compared to the presidency (29 percent) and Congress (7 percent) only underscores the lack of confidence Americans have in the entire federal government these days. But there may be some reason for hope with the judicial branch. Away from the spotlight of culture-war issues, the Court has spent the last few weeks coming to some important conclusions that are surprisingly savvy about the way modern tech works.
The 2013–14 Supreme Court term saw six unanimous decisions handed down on patent law issues, including one in late June that pulled up short of doing away with software patents altogether but made them more difficult for patent trolls to use. A 6-3 majority saw around Aereo’s legal gymnastics and ruled the company was essentially functioning as a cable company without paying the same royalties that cable companies pay but it went to lengths to make clear that it was not banning all current or future technologies allowing for cloud storage of television programming. But in what is undeniably the most important decision, the Court ruled 9-0 that police generally need a warrant to search cell phones.
The extension of the Fourth Amendment’s protection against unreasonable search and seizure into the digital sphere breaks new ground for privacy rights in a society where Drug War-fueled warrantless searches have become the norm. “Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans the privacies of life,” Chief Justice John Roberts, a George W. Bush appointee, wrote for the majority. “The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the founders fought. Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple—get a warrant.”
The government argued that cell phones are simply containers for information but the Court rejected that argument outright. Roberts wrote that the Obama administration’s comparison of cell phone searches are comparable to routine contraband searches during traffic stops is like saying a ride on horseback is materially indistinguishable from a flight to the moon. Both are ways of getting from point A to point B but little else justifies lumping them together. Modern cell phones, as a category, implicate privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet, or a purse. Roberts’ logic was strikingly similar to that in a decision late last year by the Supreme Court of Canada.
The majority’s decision recognized the unprecedented scale of access a cell phone can grant to the details of a person’s life. Roberts explicitly laid out the case for cell phone privacy protections being as important as the traditional protections given to the home. “A cell phone search would typically expose to the government far more than the most exhaustive search of a house: A phone not only contains in digital form many sensitive records previously found in the home; it also contains a broad array of private information never found in a home in any form — unless the phone is,” Roberts wrote.
Perhaps most striking is that the decision comes at the expense of law enforcement expediency. The unanimous 9-0 ruling addressed two cases, Riley v. California and United States v. Wurie. In Riley, the California Supreme Court had previously upheld David Riley’s conviction in a shooting case based on evidence police found after searching his cell phone without a warrant following a traffic stop that revealed weapons in his vehicle. In Wurie, the defendant was arrested for a drug deal in his car before being convicted on much larger charges related to evidence the police only found because they searched his cell phone without a warrant to find out where he lived. “We cannot deny that our decision today will have an impact on the ability of law enforcement to combat crime,” Roberts wrote. “Cell phones have become important tools among members of criminal enterprises and can provide valuable incriminating information about dangerous criminals. Privacy comes at a cost.”
It’s a rare heartening moment from a Supreme Court that Americans often see as out of touch on a wide range of issues. Four of the justices are in their 70s and at least somewhat likely to retire within the decade, making the unanimous nature of the decisions and their accuracy with regard to technological nuances, at least a little surprising. But what a great surprise. The decisions set positive precedents moving forward in a world where ever-shifting technology influences more of our daily lives with every passing year. That’s good reason to hope that the next justices to join the Court, wherever they may fall on culture-war issues, will at least stand a good chance to get technology right.