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Opening Arguments

"Living in a new world"

Those of us in the "it means what it says" camp who resist the doctrine of a "living Constitution" must nonetheless acknowledge that interpretations of the document must be flexible to the dictates of changing circumstances. The Fourth Amendment, for example, protects us against "unreasonable" search and seizure. Courts have always been a little too deferential to police power by letting them search through everything in our possession at the time of arrst. That has seemed reasonable to a majority of justices in the past. Now, maybe, not so much:

During oral arguments today in two cases raising similar privacy issues, the Supreme Court seemed inclined to impose a rule that would limit police access to the cellphones of people they arrest. Under the usual standard for a "search incident to an arrest," police may seize and examine anything they find on an arrestee's person without a warrant. The question for the Court was whether that rule should apply even when the item discovered by police is a portable computer that contains a wealth of personal information, including contacts, calendars, correspondence, journals, photographs, videos, telephone messages, purchases, reading habits, musical tastes, browsing histories, travels, and legal, financial, and medical records. As Justice Elena Kagan put it during oral argument in Riley v. California, "people carry their entire lives on cell phones."

Other justices expressed similar misgivings. "We're living in a ­­ in a new world," said Justice Anthony Kennedy during oral argument in U.S. v. Wurie. "Justice Kagan's questions point out the fact that someone arrested for a minor crime has their whole existence exposed on this little device." Alluding to the fact that the Court has upheld custodial arrests (and strip searches!) for crimes as minor as failing to buckle your seat belt, Justice Antonin Scalia said "it seems absurd that you should be able to search that person's iPhone." Justice Ruth Bader Ginsburg took up the same theme. "Take an offense like failing to buckle up, even driving under the influence," she told California Solicitor General Edward Dumont. "It's your rule...that the cell phone is fair game no matter what the crime, no matter how relatively unimportant the crime....That opens the world to the police."

It's always risky to guess how the court might rule, but it at least appears that they're leaning in the direction of  greater protection for our privacy, which lord knows we surely need from the court right now.