The Supreme Court's Real Technology Problem: It Thinks Carrying 2 Phones Means You're A Drug Dealer

from the how-can-it-judge-reasonableness dept

I spent a lot of the last week shaking my head at the commentary on the Supreme Court and its (lack of) technical expertise. Much of the criticism came in response to the oral arguments in Aereo, and broke down in two areas: it either misunderstood the nature of Supreme Court oral arguments and their transcripts, or mistook familiarity with a handful of Silicon Valley products with actual tech savviness.

But in a series of cases this week about law enforcement searches of cell phones, we caught a glimpse of the Supreme Court’s real technology problem. Here’s what it comes down to: it’s not essential that the Court knows specifics about how technology itself works—and as Timothy Lee argues, that might even tempt them to make technology-based decisions that don’t generalize well. However, it is essential that the Court understands how people use technology, especially in areas where they’re trying to elaborate a standard of what expectations are “reasonable.”

So when Chief Justice Roberts suggests that a person carrying two cell phones might reasonably be suspected of dealing drugs, that raises major red flags. Not because of any special facts about how cell phones work, but because (for example) at least half of the lawyers in the Supreme Court Bar brought two cell phones with them to the courthouse that day. Should those attorneys (along with the many, many other people who carry multiple devices) reasonably expect less privacy because the Chief Justice is out of touch with that fact?

Contrast that with Justice Kagan’s point about storage location in the same argument. Justice Kagan suggested, correctly, that people don’t always know what is stored on their device and what is stored “in the cloud.” The actual answer to that question should be immaterial; the point is that it’s absurd for a person’s privacy interest to hinge on which hard drive private data is stored on.1 Instead, the important fact here, which Justice Kagan recognizes, is that the distinction between local and cloud storage just doesn’t matter to many people, and so it can’t be the basis of a reasonable-expectation-of-privacy test.

If you’re feeling less generous, you might take Justice Kagan’s point as evidence that she herself doesn’t know where her files are stored. And in fact, that’s probably true—but it’s not important. You don’t actually need to know much about file systems and remote storage to know that it’s a bad idea for the law to treat it differently.

That’s not to say that technical implementation details are never relevant. Relevant details, though, should (and almost always do) get addressed in the briefs, long before the oral argument takes place. They don’t usually read like software manuals, either: they’re often rich with analogies to help explain not just how the tech works, but what body of law should apply.

What can’t really be explained in a brief, though, is a community’s relationship with a technology. You can get at parts of it, citing authorities like surveys and expert witnesses, but a real feeling for what people expect from their software and devices is something that has to be observed. If the nine justices on the Supreme Court can’t bring that knowledge to the arguments, the public suffers greatly. Again, Justice Kagan seems to recognize this fact when she says of cell phones:

They’re computers. They have as much computing capacity as laptops did five years ago. And everybody under a certain age, let’s say under 40, has everything on them.

Justice Kagan is not under 40, and might not have everything stored on a phone (or on an online service accessible through her phone). But that quote shows me that she at least knows where other people’s expectations are different. Chief Justice Roberts’s questions show me exactly the opposite.

The justices live an unusual and sheltered life: they have no concerns about job security, and spend much of their time grappling with abstract questions that have profound effects on this country’s law. But if they fail to recognize where their assumptions about society and technology break from the norm—or indeed, where they are making assumptions in the first place—we’re all in trouble.

Reposted from

  1. That speaks to a need to revisit the sort-of ridiculous third-party doctrine, which Justice Sotomayor has suggested, but one battle at a time.

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Comments on “The Supreme Court's Real Technology Problem: It Thinks Carrying 2 Phones Means You're A Drug Dealer”

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Anonymous Coward says:

Re: Does that mean...

No, it means you’ve always been a drug dealer!

Didn’t you know that the name of your company’s product that you sell is street slang for “drugs”?

Thanks to Justice Robert I finally know why so many random people in the street keep asking me “got some safety hazard software to sell”!

DCL says:

Files vs access to the files

The idea about privacy on a device should be about the idea that said device can be setup to easily give you ACCESS to the files regardless of if they are on your local device.

When you think about it paper files in your house are protected because if you have them on your person you have access to them only if can reach them, not just because they exist in a particular place. If they are sensitive and you know somebody (police) are going to visit you hide them in a drawer (and they need a warrant to search for them).

For devices and computers where is common to save passwords and logins that device now holds access to those files even if they are ‘in a drawer’/app/folder/website.

The expectation that my privacy starts at what is not visibly available is something that can be applied to the physical device in this case (no touching buttons or changing screens Mr Police man!). The idea of probable cause and destruction of evidence shouldn’t trample over these privacy rights anymore than busting into a house is…oh wait.. military style police raids are a real thing…

ummm… am going to go trade in my smart phone for a dumb flip phone now.

Anonymous Coward says:

“justice scalia – you’ve observed different people from the people that i’ve observed”

that’s because he’s an old sheltered technophobe with a 1770’s mindset that (clearly) believes no one keeps sensitive information on a phone

in reality, almost anyone who knowingly keeps sensitive information on a phone (drug dealers, government, and lawyers alike) will often use a different device for unrelated purposes as a matter of security.

zip says:

same old, same old ...

Before cellphones, the same thing was said about pagers. Anyone who went around carrying a pager (except perhaps a medical doctor or other hospital staff) simply had to be a drug dealer, since there was no other (valid) reason for why anyone would have a need to stay connected with the world. Normal everyday people just didn’t carry pagers, or have any need to, so the thinking went.

Before pagers, public pay telephones were used as tools of the drug trade, so something had to be done about them, in the name of the so-called “war on drugs”. Therefore, many payphones were crippled so they could not receive incoming calls. You see, only a drug dealer would have any need to ever receive incoming calls on a payphone (or maybe a Mafia boss discussing “business”). And like today, the authorities decided that once criminals (and presumably primarily criminals) had been known to use a particular technology, a low-cost way of fighting crime would be to both restrict that technology, as well as profile people who used it as likely criminals.

It’s funny that even today, decades after drug dealers switched over to pagers and then throwaway cellphones, it seems most pay telephones (the few that are left) still don’t have incoming phone numbers. The “war on drugs” has unleashed immense “collateral damage” on innocent people through its scorched-earth tactics, even decades later. Perhaps not unlike residual land mines left behind by a retreating army and forgotten about.

John Cressman (profile) says:

Again... they need a test...

I’m sorry, but the current court system is outdated and broken due to technology advancing faster than the judges desire to keep up.

Justices need to be FORCED to recuse themselves if they don’t understand the technology be discussed in case and then warned and removed if they fail.

This is a good example of how out of touch these Justices are. 2 Phones isn’t uncommon AT ALL. I do work for a hospital and some docs and nurses have 1 personal cell, 1 work cell and 1 on-call cell. And… while they DO deal in drugs – it’s legit and prescribed. Well I hope so in the majority of cases.

Coyne Tibbets (profile) says:

“Justice Kagan suggested, correctly, that people don’t always know what is stored on their device and what is stored ‘in the cloud.'”

And by this, demonstrates her own issue with understanding the implications. Because whether or not the document is in the cloud or the phone is irrelevant, since the whole point of having it in the cloud is so that I can have it in my phone, in seconds, on demand.

So there isn’t really a distinction between cloud and phone; not a useful one, anyway.

Danny (profile) says:

This remark is just ignorant

“So when Chief Justice Roberts suggests that a person carrying two cell phones might reasonably be suspected of dealing drugs…”

My wife carries two cell phones: a personal one with a number she’s had as long as I’ve known her; and a Blackberry her employer provided and requires she carry.

Her employer? The US Federal Government.

Anonymous Coward says:

Carrying two phones as a drug dealer is pointless. A customer calls the drug deal’s phone that’s he’s using for incoming calls. Then the drug dealer turns around and redials that same number on his outgoing phone.

Tell me, what sense does that make? How is that supposed to hide anything from call logs? All the police have to do is cross reference the incoming phone numbers, to see that someone immediately called back that incoming phone number, from a different phone.

Then all law enforcement needs to do is run those two phone numbers through CO-TRAVELER, to see the geolocation movement details of those two cellphones always intersect with each other in the same areas.

From there it’s onto using parallel construction to build a case against the defendants, and it’s game over.

Law enforcement don’t need to search a suspects cellphone to get all that information. That information is all logged in the phone companies’ metadata databases. So the whole ‘two cellphones = drug dealer’ argument, is irrelevant.

Anonymous Coward says:

Re: Re:

“I shouldn’t bring my Business phone with dual sim, nor my personal phone with dual sim into the USA anytime soon then..”

What? You have a dual SIM phone? Not only do you have the functionality of 2 phones, but you’re trying to hide it by making it look like one phone. That’s proof that you’re not only a drug dealer, but likely a pedophile and terrorist as well. A trial would be a complete waste of time with you, since you’re so obviously guilty. You’re going to be total bug splat.

Matthew Wells Sanders says:

Out of Touch

Justice Scalia shows how out of touch he is with his comments about observing different people than his witness. Sadly, I believe him. Unfortunately, this merely underscores his raging incompetence to establish what would be “reasonable” since he does not actually have any sense of how the “Common American” lives. It is a shame that the American People cannot remove those Justices that fail to fulfil this crucial role as one leg in the three-legged-stool due to their complete lack of awareness, or perhaps compassion, of the lives of the average American.

I submit that there should be a system by which the populace can move to impeach these clowns through popular vote…

Anonymous Coward says:

Re: Out of Touch

“Justice Scalia shows how out of touch he is with his comments about observing different people than his witness. Sadly, I believe him”.

Must the people Scalia hangs with are just now getting their first dad-burn new-fangled cell phones. If land lines were good enough back in Benjamin Franklin’s day, they should be good enough today.

Anonymous Coward says:

Re: Re:

Further, my grandfather, who died over 20 years ago, produced a total of 5.6GB of data in his lifetime, and this was in the days before personal computers. So far, in a mere 40 years, I have beaten my grandfathers data production total by a factor of around 20, and I don’t even film anything.

vancedecker (profile) says:

GEE YA THINK? So 90 year olds don't understand technology?!

Well this comes a shock to me!


So, 90 year geriatric corpses who sit on the supreme court share characteristics with other 90 year old geriatrics in the general population in regards to technology issues? NO SHIT!

We’ll be living with the precedents made by these morons for decades.

With that said, drug dealers do mostly have multiple phones. I don’t anyone who has multiple phones, except possibly people who are forced to use certain phones for work.

My dealer usually has a different phone every month, and only sends the new phone number to the ‘good customers’ and not the dime bag losers. That’s why it’s always important to only contact your dealer for large solid orders and not constantly bother them for with small exchanges. That’s how I always get my dealers new number.

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