Thursday, March 1, 2012

The Fourth Amendment outrage that wasn't

Liberals on Twitter are in a bit of a tizzy today about the latest Fourth Amendment rule from the Seventh Circuit:
US federal appeals court has ruled that mobile phones can be searched to some extent without a warrant. Abel Flores-Lopez, who was recently sentenced to prison in a drug case, had appealed his conviction, saying that police had acted illegally when they searched his cellphone for its number. However, the Court of Appeals for the Seventh Circuit upheld the case, saying that even if searching a phone required a warrant — a question that is far from settled in most places — searching simply for its number is so "minimally invasive" that police don't need to obtain one. Since the phone was readily available when the police stopped the suspect, "if police are entitled to open a pocket diary to copy the owner's address, they should be entitled to turn on a cellphone to learn its number."
I was prepared to get all worked up about this. Really, I was. I was going to write a whole bloggy diatribe about it. But then I realized... I just don't care that much. Try as I might, I just can't get very worked up about the court's decision. Frankly, it just doesn't seem like a very big deal to me. And that's telling.

Before I go any further, I want to be as clear as possible about my position on the Fourth Amendment. I'm not the world's biggest fan of consumer privacy rules, but privacy from government searches is another matter entirely. I'm a major advocate of a beefed-up, supercharged Fourth Amendment. Unlike private actions, the government's actions find their root in a collective ideal, and are undertaken for the collective good. And unlike most privacy rules, government privacy protections don't interfere in any way with the individual's prerogative to, well, be an individual.

What's more, government intrusions have a tendency to create more of the same. For complex reasons relating to the structure and application of popular Fourth Amendment legal tests--reasons I won't enumerate here (because I want you to read my law review note if it ever gets published (and also because it would take me about fifteen pages of text to explain them))--I believe very strongly that in the context of the search and seizure rules, the slippery slope fallacy is anything but. There are flaws built into the machinery of Fourth Amendment law that enable the degradation of privacy protections but inhibit their restoration. It's a belief that makes me extra-extra-paranoid about any Fourth Amendment decision favoring the government.

Still, take a step back and look at what the court's saying here. It's saying that once a cell phone is in police custody, cops are allowed to scroll through the phone and find its number without a warrant. All legal argumentation aside, it's a holding that seems eminently reasonable. Out in the real world, nobody thinks that checking a phone for its number is the same as trawling through its memory for buried secrets. Cops aren't fishing around for information--they're determining the most basic properties of the object in their position. I'm sure, to them, it seemed perfectly perfunctory, just like it would to us, if we found the phone at a restaurant. It's like checking the license plate on a car, or the return address on a letter.

Now, there's no doubt that this sort of reasoning could lead to genuinely disturbing rulings down the line, as it gets expanded and applied to all sorts of vaguely analogous fact patterns. But the court wasn't facing those fact patterns. While I think judges have some obligation to consider the precedential value of their holdings, they also have to address the case at hand. And it's hard to ask any judge to interrupt completely mundane police work with high-minded constitutional theories, particularly when those theories would seem totally alien to the vast, vast majority of the population. Sometimes even nerds like me have to admit that the strongest rejoinder to their arguments is, "Yeah, but who cares?"

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