How SCOTUS Paved the Way for Flock Cameras

Transcript

This transcript was generated automatically and may contain errors — the audio is the record.

0:00:03 Jenessa: If you're like arrested at a protest and they try to search your phone subsequent to arrest, that is not legal.

0:00:17 Jenessa: Essentially, Katz, in my head, establishes the like rule of ick. If it grosses you out, if your neighbor did it without your consent, the government shouldn't do it without a warrant.

0:00:23 Thomas: Hello and welcome to Opening Arguments. This is episode 1282. I'm Thomas. That over there is Jenessa. How are you doing?

0:00:39 Jenessa: I'm doing pretty good. I'm hoping you're not picking up all the sounds of my neighborhood today. It's like Richard Scarry's busy world out there.

0:00:47 Thomas: What's that? I don't know that reference.

0:00:48 Jenessa: Oh, you don't know those books? Like the kid books? It's all the little animals. Like there's like the you know cat beating a rug and like a little snail riding a bike

0:00:50 Thomas: No, sure don't. That sounds delightful. Is that from that meme where it's like, this is the world I wanted or whatever? You know what I'm talking about?

0:01:04 Jenessa: Oh, I bet you it is

0:01:06 Thomas: This is the World I Was Promised or something. Yeah.

0:01:07 Jenessa: Yeah, and it's just like four million animals doing four million things. Yeah, I was like moving about today and I'm like, Oh, look an amazon driver dropping off a package and someone's stealing the package and a child screaming

0:01:10 Thomas: Yeah, it's just like nice animals doing fun stuff. Yeah, okay, I like it.

0:01:22 Thomas: That would only be good if the person dropping it off was a cat. The person stealing it should be like a weasel or a fox and then it's less crime and more like oh

0:01:27 Jenessa: Yes, yes Yes, snail on a tricycle was missing.

0:01:35 Thomas: That rascal. Well, uh what are we going to be talking about today

0:01:38 Jenessa: Not snails. We have to talk about data privacy in this country. I am not the arbiter of what is the best ethical decision here or what is most practical. I do know that I feel deeply uncomfortable with where we're currently at and it would be nice if we did things a little differently.

0:01:43 Thomas: Boo

0:01:58 Jenessa: It's also blowing up my timeline with flock cameras and AI face detection and all of the problems going on with that, Mess-ups with AI face detection. So there's a lot to talk about. And I have like a whole series planned for us.

0:01:57 Thomas: Hmm hmm ah fog cameras yeah

0:02:18 Jenessa: Yes, I got on a real kick about this and it turned into too much. So I've got some stuff for you on the Supreme Court, looking at it from a criminal perspective in the Fourth Amendment and your rights to privacy against the government. The civil side of things the aclu and state versions like the new york civil liberties union are bringing lawsuits about this for civil damages and for injunctions and also on your local level there's administrative actions happening and legislative actions on the federal, state, and local level, people trying to regulate or stop some of this.

0:02:16 Thomas: Oh a series you say hmm hmm

0:03:04 Jenessa: It takes a lot to tell this story from the legal side of things. What is being done? What could be done? What is the current state of the law? I got a lot of opinions about it. I don't know how many of them are right, but I think it's really important to talk about and it's causing a lot of problems even in my neighborhood. There's just cameras everywhere now and it is deeply uncomfortable.

0:03:35 Jenessa: Yeah, I would say data privacy more broadly.

0:03:37 Thomas: So we just are we talking specifically about the kind of camera thing going on or is this privacy in general like data privacy or okay

0:03:37 Jenessa: So these first series of Supreme Court cases are really focused on the broader issue of surveillance. The method of surveillance definitely matters. The court is talking about that, concerned, confused, but it doesn't have to be unique to electronics and that kind of surveillance they are thinking about it they're going to talk a lot about it but they'll always try to tie it back to principles that don't have to be unique to the electronics that would be better left to the legislature right

0:04:15 Thomas: Are you telling me that a bunch of 80-year-old justices aren't the people to regulate data privacy in this day

0:04:20 Jenessa: Thomas I am going to break your heart the youngest justices are the ones who seem to be struggling the most to understand I swear to God, Neil Gorsuch is going to understand the technology better than anyone else on the court.

0:04:24 Thomas: And age uh Oh, man Oh, wow No wait he's younger though So,

0:04:41 Jenessa: He is right in the middle. I looked this up. He's 58 and he like nails it better than anybody. He like, I ran it by a friend and he was like, yeah, he's getting it. And everybody else is a mess. Brett Kavanaugh, 61, three years apart, the worst. Kavanaagh understood this technology worse than anybody else. He brings analogies that I was like, oh, if I was a teacher, I'd be like, I'm so glad you said that. What an incredible teaching opportunity. You don't get it. You clearly, here's what you're not understanding. But of course he doesn't listen very well.

0:05:11 Thomas: To tell you how wrong you are. Wow, wow.

0:05:19 Thomas: Okay, well, Neil Gorsuch is the third youngest, so I feel like he is one of the young ones. Sorry, I'm going to disagree with you there. Middle is Roberts and Kagan. Wow! Okay, wow, this is, gotcha,

0:05:30 Jenessa: Yeah, they're like, they're older, but they're not like, the difference between Gorsuch and Kavanaugh in their understanding is wild and the age gap is three years it is not explained by age alone for

0:05:43 Thomas: Okay, but on the broad, so like at least, so ACB is the youngest, younger than Katonji Brown Jackson, but at least she's 50. Okay, they're close. So 54 and 55. Gorsuch I always think of as like in his early 50s. I don't know. I guess that's when he was put in the on the court is more like early mid 50s Wow,

0:05:59 Jenessa: Yeah, yeah, he's probably been there about that long now

0:06:03 Thomas: I would not have said Kavanaugh was older and I don't know why. Why is that? I would have thought he was younger.

0:06:06 Jenessa: He's just got such a boyish baby face it says little cheeks they're

0:06:09 Thomas: Yeah, that's true. Oh, boy. Well, uh, so you're telling me I I don' t know so you' re telling me the younger ones Well, okay, you're not telling me the older ones are the ones that are gay Because Thomas and Alito are the two oldest So it's not as though they're Okay, phew, being

0:06:19 Jenessa: A mess oh no thomas and alito I'm gonna always attribute them their Their issue is not always about not understanding tech and more about licking boots.

0:06:30 Thomas: Insane. Yeah Okay, fair enough, fair enough Yeah,

0:06:35 Jenessa: Who knows what their problem is? But Kagan, among the older, like right in the middle there, she's gonna write our majority and be like, yeah, this is too intrusive. Like my cell phone is attached to my hip. And then Barrett is gonna, she's the youngest and she's going to be like I don't understand how any of this works. Yeah, Sotomayor will direct her to the IT department to like figure this out. Yeah.

0:07:00 Thomas: Okay, do you think That explains it more than the ideology Because what you're saying, right now it sounds like left-wing justices are getting it and right-wing justices aren't getting it, that's kind of what it sounds to me All right. Well, we'll have to keep an eye on it.

0:07:09 Jenessa: Kind of it's very hard to explain Kavanaugh doesn't get it but then he comes out the right way on the decision so like who the hell knows Yeah

0:07:18 Thomas: Well, I'm very interested. We've got a lot to talk about, I am sure. Why don't we take our usual first break, avoid the ads, get the lot off of movies, the book club, so much else, maybe even future episodes of this show early if we're doing a series here. We'll see. Patreon .com slash law. Get rid of those ads and support the show. Thanks so much to everyone who does. We'll take a break and then we'll get into the technology.

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0:07:44 Thomas: All right, where do we begin your epic tale?

0:07:48 Jenessa: So for these two episodes uh this one in particular I want to be really focused on this fourth amendment issue so we kind of got to start at the beginning what does it

0:07:58 Thomas: Why don't you say, I know, but like you should, don't, thou shall not covet.

0:07:59 Jenessa: Say it might as well this one's actually one of the clearer ones I think. Okay, here's our exact text. The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated and no warrants shall issue but upon probable cause supported by oath or affirmation and particularly describing the places to be searched and the persons or things to be seized.

0:08:39 Thomas: Jokes aside, that's pretty frigging awesome, actually, that we got that. That's like one of the better ones of the, you know, those, those old slave holding assholes, they did get some stuff right. That's a good one.

0:08:50 Jenessa: Yeah. It's a huge part of what sparked the revolution was just like British soldiers being like, I need to search your house for evidence of crimes. And I have a gun, so get out of my way. That was a huge invasion.

0:09:06 Thomas: If you don't mind, if you need me, I'll be quartering myself over here in your, in this other guy's house. Yeah. And breaking a printing press.

0:09:09 Jenessa: Yeah. The Third Amendment also. So we have these very very specific provisions in here I mean I was surprised to learn when I first started studying this like oh I mean the word warrant and probable cause and it needs to be particularized like that's not legislation or judicial construction that's been around since the 1700s like that that's wild so what is left here that can be confusing what gets litigated what is a search and seizure.

0:09:46 Thomas: Right. Well, famously, what is the process and how much of it are you do? Like even even with these great starts, it's still like, OK, where does that breakdown was exactly included in all that?

0:09:56 Jenessa: Exactly. So if it's not a search, you don't need a warrant. This won't apply. So that's like plain sight doctrine. If I'm legally in the location and I can just see it with my eyes open, I didn't touch anything, I Didn't Search You. So then that's fine. We also have no warrant needed if there's no reasonable expectation of privacy or certain in exceptions like exigent circumstances somebody was well yeah I mean yeah exigent circumstances would be like somebody's screaming help help help well you don't have to wait for a warrant you can run into this house and what that really says is not only are you allowed to do that but if you then witness evidence of a crime that evidence is admissible despite the fact that you had no warrant to go run into that house it's an interesting exception compared to like yeah Yeah, plain sight, I think, is really obvious. Otherwise, the cops have to walk down the street with their eyes closed.

0:10:22 Thomas: Or if you're black, stop and frisk. Hmm, hmm. Yeah, yeah.

0:10:53 Jenessa: It's a more clear example. OK, let's say we agree it is a search and seizure and it is otherwise unreasonable. OK, great. You do need a warrant. The other places where it's common for a warrant to get challenged is it wasn't appropriate. So like it's not sufficiently particularized or the probable cause wasn't actually there. Or you did get a good warrant. Everything was fine. But then it wasn'T properly followed.

0:11:20 Jenessa: You say the crime was a stabbing. You think this person did it. You think there might be evidence in the car. Well, you can go look in the car for a knife. That means you can open the dash like that. There could be a knife in there. If you find a tiny little container that could not possibly have a knife In it, you Can't open that.

0:11:39 Thomas: Ah, interesting.

0:11:40 Jenessa: That's not what the warrants for that's about the particularized aspect of it. You don't get to just go ransack my house. Those are like common ways it gets challenged. Either they didn't get a warrant and they needed one. They got a warrant, but it wasn't sufficient in some way. Or they got a sufficient warrant, but they didn' t follow it correctly. Those are the big things that are going to come up.

0:12:04 Jenessa: How did we get where we are? Some of the earlier stuff, Matt and I covered this in episode 1192. We talked about the early stuff. I'll briefly review it here. In Olmstead v. U .S., which is not the same as Olmsted v. L .C., which you and I have talked quite a bit about. Yeah, totally different. Apparently that's a more common, I've never heard that last name, but I guess

0:12:23 Thomas: Oh, I was going to say I was like, wait, I know this one. I thought that was recent. Yeah. Oh OK. Yeah,

0:12:31 Jenessa: It's more common than I thought. This was in 1928. They said, essentially, the way you violate the Fourth Amendment is with with trespass. So when they climbed a public telephone pole and wiretapped somebody, they didn't trespass, so it didn't violate the Fourth Amendment. That was, like, fine. Granted, that was 5 -4. I think it's important to note how many of these cases are not 9 -0s. Yeah. Yeah.

0:13:01 Thomas: I always think about that. Yeah I always thing about especially with some of our fundamental rights where you're like wait that you know I want to say the one I'm thinking of might be Miranda. Miranda. But it might be that, or if it's not take it, you know, the, the point stands like when you, when you learn about these cases, like, okay, Miranda rights. If you asked anybody on the street, they'd be like, well, that's just definitely some of our basic rights, most basic rights. It's like, wow, that was invented five minutes ago. And it was probably five, four, like it probably barely was invented. And some assholes nominated by Nixon or something almost stopped it. And it's like, I wish everybody, I'm making it up, but it might actually not be made up. That might be what happened. I don't know. But I wish people more people appreciated like how how much the rights are actually new. They're actually based on people, largely progressive minded people for the time, you know, and it's good. It's also good that they interpreted the Constitution the way they did.

0:13:51 Jenessa: We just teach these things. It's like, this is the law. This is the rule. And it's like I don't know, man, that was 5 -4. Like that was just barely the law that that could go the other way tomorrow.

0:14:05 Thomas: Right. Right. Especially when we've seen it nowadays, when five, four from two minutes ago means, oh, great. Now everything in the dissent wrote is like the guiding map, you know, the roadmap. Yeah. For for because they know the court will overturn it now. Like with, you Know, Humphrey's executor, I think, or stuff like that where it's like, yeah. Or the voting, the voting rights one. You know, it's Like that that lasted two seconds until they knew they had the numbers and then it's gone.

0:14:15 Jenessa: It's being cited. Dobbs. Yeah, that one. It was 5 -4. Brandeis wrote a famous dissent. It's 1928. He said, I don't think this is a good idea.

0:14:43 Thomas: Hmm. Is this still Olmstead or was this a different? Okay. Just checking. Go ahead.

0:14:46 Jenessa: Yes. Yes, so we're still talking about climbing a telephone pole. He says, hey, man, I know right now you had to climb a telephone phone pole and plug into a wire. But like, technology is going to advance and this line of thinking that you have to physically trespass in order to violate my Fourth Amendment rights, that's going to get old real fast. He said that in 1928.

0:15:09 Jenessa: Not those exact words that I just said that sounded very millennial, but you know what I mean. He was anticipating that technology was going to cause a problem here. And sure enough, it did. I mean, very quickly, it became easier and easier to snoop on people. From 1928 to 1967, it is basically just, if you don't physically trespass, you're not violating the Fourth Amendment. 1967, famously, Katz v. U .S. This is 7 -1. One of the justices was missing.

0:15:42 Thomas: I never found him. Right.

0:15:44 Jenessa: Marshall was, I think, getting confirmed at the time. This is classic the phone booth case so they didn't trespass on anything they installed the little microphone on the top of a public phone booth the very brief version they said hey it's not just about trespass it's about a reasonable expectation of privacy very important that like very key concept if you reasonably expect that what is going on is private if you you think your neighbor shouldn't spy on you, then the government shouldn't either. So think back to Olmsted. If my neighbor climbed the public telephone pole, which probably trespassing on the government at that point or something, but if he got out there and somehow tapped my phone line and listened to my conversations, I would feel violated, disgusted. Essentially, Katz, in my my head establishes the like rule of ick.

0:16:06 Thomas: Key concept. Right? Yeah. Yeah.

0:16:44 Jenessa: If it grosses you out, if your neighbor did it without your consent, the government shouldn't do it without a warrant. That's basically how to think about it.

0:16:52 Thomas: All right. Interesting rule.

0:16:54 Jenessa: What is going to happen when technology starts advancing? We end up with two cases, 83 and 84, USV Knotts and USV Caro. They are nearly identical facts where the cops managed to sneak a beeper onto somebody.

0:17:11 Thomas: A beeper.

0:17:12 Jenessa: In one case, a person bought a five -gallon drum of chloroform. In another case, they bought a 10 -gallen drum of ether. And they were like, just stick a beepers in it and sell it to them and they'll think it's drugs or whatever, basically. In Knott's, they were using the beeper to aid them in tailing the vehicle.

0:17:23 Thomas: Huh. Gave due to beeper, okay.

0:17:34 Jenessa: At one point, the drivers make make an evasive maneuvers and they lose sight of him the usual like cops trying to tail you but eventually a police helicopter picks up the beeper signal and they find it

0:17:45 Thomas: What the, okay, what the F is a beeper? Maybe I don't understand what a beepers is, but okay, I'll go with it. Picks up the beeper signal. Yeah. How did that work? All right, triangulate. Late it's not important yeah

0:17:52 Jenessa: Oh like I mean 90s yeah like you can I okay yes yes technology triangulate send a pulse I don't know in In Knots, they do that, and they had been tailing the guy. They lose him, but then they find him again. In Karo, very similar, but they, like, find him at his house, and then they're using it to figure out if he leaves the house with the gallons of ether. And this is the distinction. In USV Knots there's a whole pile of concurrences, but essentially 9 -0, they're gonna say it is fine to use this to kind of boost your ability to tail somebody you're traveling on a public thoroughfare is not private anybody could watch you drive down the road you already know cops could tail you and so like all they really did was like enhance it

0:18:23 Thomas: Interesting interesting hmm okay

0:18:57 Jenessa: I kind of think think this is bullshit but like yeah

0:18:59 Thomas: Yeah it kind of feels like there would be a lot of ways that would go wrong that I doubt they're gonna keep track of if you went into your house then back out or if you went you know it's like okay shouldn't you then no longer get to track them, but I guess you think you can. I don't know.

0:19:17 Jenessa: I don't love this one I get their point about the general concept like it makes some sense if the cops could drive a car and follow you on the

0:19:27 Thomas: Yeah, it's sort of like if they could follow you on the street and they could use binoculars to check that it's your license plate or something like they're using like a tool to help keep track of you. Maybe. Yeah it's like that. It's kind of interesting. Like where's the line? Could they use a camera that's just tracking your plate?

0:19:35 Jenessa: Street sure so it's like super binoculars like yeah that's

0:19:46 Thomas: And I think the answer is probably yes to that, that. Right.

0:19:49 Jenessa: Kind of where we're at is like like modern day, like, I don't know how we feel about that. So, okay, that's USV Knots in 83, USV Caro in 84, when they were tracking the guy and they were very specifically tracking him in his house with it. Did he leave the house? Did he move it in the house ? Did he go to a different house? 9 -0, no, unacceptable. So this is all the same people.

0:20:13 Thomas: Oh, it's all the same people. Oh.

0:20:15 Jenessa: It's a year apart. Oh, not the defendants. It's all the same judges.

0:20:18 Thomas: Okay. I was like, what the hell? Oh, gotcha. It's like one case at all these different things. I mean, it wouldn't be that crazy, I guess.

0:20:25 Jenessa: Yeah, true. No, so all the same justices. 9 -0, you can't do this one. This is different because the house is like this very special extra protected place. We do not want to go here. The beeper to help them chase you down the road, even if they lost you and then found you again with the helicopter that was fine but when they used it to try to figure out when you were in your house and when you left your house that was too much too far you needed a warrant to do this now they're not saying with a warrant you can't do that like with a warranty you probably can get a warrant and then it's a different story but they were doing this without a warrant what are you doing

0:21:10 Thomas: Okay, got you. Okay like they could just do it to anybody at any time they thought.

0:21:15 Jenessa: This is the big problem is every time the government tries to argue we don't need a warrant for this. That means they could do it to you for no particular reason at all. With a warrant, they have to have probable cause to believe you committed a crime. And then a judge, a magistrate who's like, you know, supposed to be kind of impartial and not emotionally attached to this case should go, yeah, I agree. Probable cause. Here you go. If a warrant isn't required, they could just be like, I'm curious what Thomas is up to. Just because it really matters

0:21:23 Thomas: Right, got ya. Okay no one would ever say that but yeah I get you. I'll go with you. You I'll go with you yeah right

0:21:56 Jenessa: The government argues they could do it without a warrant versus the warrant was defective or something like that and here they were trying to be like we could just stick beepers on people without a warranty and they're like I don't know about that yeah this one we talked about very briefly in the episode with matt kylo v us so this was 2001 5 -4 for this one. And we're starting to get now to some of our justices who are still in the court. This is written by Scalia, joined by Thomas. So actually, that's the only one still in the court out of this pile in 2001. I'm looking through my list right now.

0:22:08 Thomas: Right yeah that's pretty significant okay

0:22:38 Jenessa: Yes, shortly. Alito's right around the same time.

0:22:33 Thomas: Yeah oh yeah because roberts was kind of just after that I think wait when was elito when was alito okay

0:22:44 Jenessa: I think so. I can't remember the exact date. The names will be familiar, though. The 5 -4 is Scalia, Joined by Thomas, Ginsburg, Breyer, and Souter. And And they're going to say, well, here's what happened. Police, for reasons that are not clear, suspected this guy had a pot farm and the grow lights are very hot. So they use thermal imaging to find the big hot spot on the wall and they use that to develop. Yeah, yeah. That's my probable cause that there must be a pot firm in there.

0:23:11 Thomas: Oh I remember this yeah wow okay

0:23:17 Jenessa: Give me a warrant. So they did the thermal imaging without the warrant. The reason this decision is really important is twofold. They say, number one, if the technology is not commonly used by the general public, you don't expect the government to, you don't respect people to do it, so you don' expect the gov't to do I.

0:23:37 Thomas: Interesting well the reasoning being like if it's all based based on your expect expectation of privacy, then I guess that makes sense. I also see that as a little, a little interesting. Cause at the same time, it's like, it seems a little arbitrary. That's like the police then can use whatever and citizen would use. And then ultimately I think the, the punchline being like, as technology changes, it's Like, well now a person could do a whole lot of stuff probably that a cop that they wouldn't didn't used to be able to do.

0:24:09 Jenessa: It does create a problem. Like, if we normalize as a culture that it's it's cool for your neighbor to do that.

0:24:15 Thomas: You don't want to know the things Lydia can find out about you from snooping on your social media and tracking down all of your everything.

0:24:23 Jenessa: Boy. Yeah, it could get bad. And I think it's actually an important point that we have to kind of culturally hold the line on what's acceptable in order to hold theline on the Fourth Amendment there. Don't just say like, well, you know, everybody knows everything anyway. No, it's gross. It's weird. Number one, if the tech is is not widely available to the public, I don't go out of my way to hide the thing.

0:24:49 Jenessa: So I'm not hiding it from the government either. And number two, the important part was what they did not do is say what things people are allowed to consider private. Yeah, it's just like a thermal blob, like the heat inside of my house. What's private about that? It's not like an image of my body. It's not an image of my stuff and Scalia says it doesn't matter it's not my job to decide what you are entitled to consider private and personal and secret it's a thing inside your house you're entitled to considered that private the end mm

0:25:27 Thomas: Oh, okay. I thought that was going the other way for a sec. Like, I thought, okay, because Scalia, my memory was he was actually, this is one of the areas he wasn't as bad at, his Fourth Amendment. Okay, cool. Gotcha.

0:25:38 Jenessa: Generally yes he was pretty good on this um he had weird opinions on it but he was generally good on it that was considered really important That they didn't get into what the lower courts had done, which they were like, well, but I mean, it can't like it can'T really show like the exact outline of a human, right? It just like showed how hot the wall was. Well, today, it probably could, right. But back then, 2001, the court was like, it doesn't show that. And the attorneys are like, no, no. And they were Like, okay. And Scalia's like, yeah, I don't I don'T care. It does not have to zoom in on your butthole to be a problem.

0:25:58 Thomas: Seems like it could show that, but yeah. Yeah. Oh, I see. Yeah. Yeah.

0:26:16 Thomas: Grabbing that quote. Yeah. Well, that's an interesting. So it sounds like now I understand, again, our king Scalia on this, apparently the argument being like, well, you don't have an expectation that like a heat blob that you create is private. And he, again. Hero and icon. It was was saying like, yeah, but your house is your house. You get to expect everything's private in your house, which. Great.

0:26:40 Thomas: Good job. Get that guy in this one particular thing. Yeah, yeah.

0:26:40 Jenessa: A plus and thomas joins that keep that in mind as we talk about the modern cases because thomas thomas is going to say all kinds of really he's going to sign on to other people's opinions that will go totally the other direction on technology do we reconcile it in some way do Do we just think he went along with Scalia and now Scalia's gone?

0:26:48 Thomas: But yeah, he's not interesting. That's why I sort of rejected the whole premise of him having a very coherent worldview around the black separatist, whatever Matt was saying from that book, like maybe, but I don't, I don'T know. This would be evidence against that. If it's like when Scalia was around, he was going for this and then now he's completely contradicting himself.

0:27:26 Jenessa: And keep it in mind, like he said that he agreed with the majority here and went for that. Let's think about that when we get to the later ones.

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0:27:38 Jenessa: There's a big one here in 2014, Riley v. California, 9 -0 for the judgment. We're going to get a little bit of Alito's going to like, he's always got to be Alito. He concurs in part and in the judgment, but otherwise 9 -O. This is about a cell phone. Liz covered this a bit in episode 1232, the Luigi updates and like searching his bag.

0:28:04 Jenessa: As a general rule, search incident to arrest. They can patch you down. They can look inside your bag. It's pretty invasive. I think most defense attorneys think it's over the top, especially if they can, you know, come up with a reason to arrest you and then do that. That. On the other hand, when arrested, search incident to arrest, they can just go through your purse. 9 -0, they may not go through Your Cell Phone.

0:28:34 Jenessa: You need a warrant to go through The Cell Phone.

0:28:37 Thomas: All right. That's that's good. Wow.

0:28:39 Jenessa: Yeah, solid. Majority written by Roberts, joined by Thomas, Sotomayor, Kagan, Ginsburg, Scalia, Kennedy, Breyer. Alito concurs in part and in the judgment. Slight disagreements about why, lie, basically.

0:28:52 Thomas: Here's what we need. We need to make sure our justices are always taking plenty of nude selfies, keeping them in their cell phones that will keep us with our privacy because they'll be like, oh, I don't want I want someone going through my cell phone for no reason in particular. So let's make sure it is our duty to sext with our Supreme Court justices is what I'm saying.

0:29:11 Jenessa: You know, I do think you have a point in that. Well, that was a bad place for that quote. There is an easy to understand aspect here. They don't have to understand anything about technology at all. All they have to know here is how would I feel if you just took my my cell phone and started scrolling through it. And the answer is not good, gross, uncomfortable, weird. And that's essentially what they say here. It's almost never going to qualify for an exception, but like maybe exigent circumstances, like there's some crazy emergency going on, or like you're watching them delete evidence in front of you, then maybe. But otherwise, Otherwise, compared to like search the bag, they've come up with all these reasons why that's reasonable.

0:30:14 Jenessa: Your phone, they say, is like it's attached to your hip. It has such important details. So there's a really often quoted part of this where they're describing how important your cell phone is to you. And they say, these cases require us to decide how the search incident to arrest doctrine applies to modern cell phones, which are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy.

0:30:47 Thomas: All right. Who wrote this?

0:30:48 Jenessa: Roberts.

0:30:49 Thomas: Oh, man. Kind of a little bit of old man yells a cloud quality to it. But at least he was on the right side of it. Right.

0:30:56 Jenessa: Yeah, yeah. He was writing that 9 -0 majority that's like, it's like quite literally attached to my hip it's so important to us it's got everything in there it's not just like a backpack it is so deeply personal I know I don't want you flipping through it this one is often the subject of a lot of misunderstanding what is important here with a warrant could they search your cell phone yes what happens if like most people you have it locked and encrypted there's a whole split in the case law first of all whatever as soon as you're at the border all of this goes out the window the aclu is a great resource for that but also not at the border normal rules applying we have a circuit split and state courts saying different things the supreme court has not addressed this and the aclu is like begging them to address this if it was locked with a numerical code and they have a warrant to search your phone can they compel you to give them the code probably not under the fifth amendment right to not testify against yourself essentially you're disclosing the contents of your mind it comes from a series series of cases about wall safes.

0:31:54 Thomas: Still. Still? Now? Oh. Yeah. Right.

0:32:29 Jenessa: If you had a physical key, they could compel you to turn that over, presuming they had a warrant. But even with the warrant, they couldn't require you to give up a pin to open it because it was testifying against yourself, essentially. Applying that to a cell phone, probably. There's some discrepancies, but some circuits are saying, no, even with the warrant. They can't make you give up the pin to get into your phone. If you do biometrics, face ID, a fingerprint, could they make you put your finger on it? Could they hold it up to your face to get in? Probably.

0:33:10 Thomas: Oh, I thought they could hold it up to your face, but I didn't think they could make your finger do the fingerprint.

0:33:16 Jenessa: It's all circuit splits.

0:33:17 Thomas: Oh it is? Oh, okay.

0:33:17 Jenessa: It is not like it is not Supreme Court has not commented on this. So the ACLU is constantly like, please take one of these. Come on, we gotta get an answer. Well, I, yeah, it, hmm, it's tough. Yeah, I mean, you don't want a bad answer, but right now we just don't have, we have, like, different states doing different things and different circuits saying different things.

0:33:27 Thomas: Yeah, I guess. Depends on what they think they'll do with it, but sure.

0:33:44 Thomas: It also might be that this court might not be terrible on that, maybe?

0:33:48 Jenessa: They might not. They just, in 2014, very similar court composition, uh, Roberts, Thomas, Sotomayor, Kagan are all on there. They're 9 -0 for this. Oh, and Alito said, yeah, you can't just search the cell phone without a warrant. So maybe, I bet you they would probably still go for the can't make you give up the numerical code.

0:34:14 Jenessa: Probably would go for, yeah they can hold it up to your face, like they can make you take a mugshot. They can also make you get fingerprints. So like, the place where this gets gets misrepresented because I've heard this like game of telephone happen if you're like at a protest or like arrested at a protest they need a warrant to search your phone if you are arrested and they try to search Your phone subsequent to arrest that is not legal if youre asking what happens if the police do something illegal like you have to talk to a cyber security expert about the best way to secure your phone.

0:34:52 Jenessa: But if we're talking about what the cops can legally do, I have seen people mis -explain this, that like legally, incident to arrest, they could just hold your phone up to your face and then start going through your phone without a warrant. Absolutely not. You could have your phone unlocked, not password protected. Without a warrant, they cannot go through your phone. The end. Not legal.

0:35:17 Thomas: And like you said, it is a question of like, what are they actually doing?

0:35:20 Jenessa: Right.

0:35:20 Thomas: You know, they are often violating it, but important to know your actual rights. Maybe it won't stop them from doing something, but it could mean, you know, you're able to fight it later on.

0:35:29 Jenessa: Exactly. Exactly! If you are talking about the best cyber security going to a protest or something, don't come to me.

0:35:37 Thomas: Mm -hum.

0:35:37 Jenessa: If you're talking about your legal rights, yeah, do not tell people, oh, you better turn off face ID or else the police are allowed to look at your phone because then somebody is not going to speak up for themselves or, God forbid, give consent to a search because they think I should, oh, it's my fault. I didn't put a password on there.

0:35:54 Thomas: Right so people are confusing the the warrant thing for the just no warrant random arrest thing okay

0:36:04 Jenessa: Exactly. Yes. It is possible we will someday get a ruling from this court that with a warrant, they still can't compel you to let them in the phone. But without a warrant? This court said 9 -0 in 2014. Without a warrant. No peeking into your cell phone. They left open the possibility that maybe someday an exigent circumstances case will come up and they will we'll get away with it. But they said, like, it's hard to imagine what this, yeah. Yeah. And again, at the border, all

0:36:31 Thomas: Yeah like we just have to see this nude it's so good it's gonna self -delete yep yep yep

0:36:39 Jenessa: Of this goes out the window, like completely different line of cases.

0:36:42 Thomas: Well you say that do you mean at the borders and you're not a citizen so you don't have the same protections are you saying even if a citizen is at the

0:36:47 Jenessa: It depends. Citizens at the order have less rights than citizens just hanging out in their house. Non -citizens at the boarder have even less rights. It really depends if you're interacting with police versus, I mean, if you're interacting with ICE right now, God bless. Who knows what the hell they're going to do.

0:36:52 Thomas: Border huh yeah huh okay yeah Yeah, yeah, yeah. Sure. Yeah.

0:37:08 Jenessa: Often confused area of case law, but basically the court was good on this. And I think exactly for the reason you're saying, everyone can imagine how creepy it would be if somebody just took your phone and looked through it. Gross. No, thank you. It's also an important lesson that like the court is good about saying they're not going to do what we see some just random civilians say of like well if I'm not doing anything wrong what do I care the court does do a good job of like when we test the edges of the fourth amendment we like presume malice presume they're gonna do something bad you know supreme court justice john roberts I will never do anything wrong so of course I'll never be justifiably arrested arrested. God, he does. He's very just monotone, steady.

0:37:54 Thomas: I think he's a Ken doll. I don't think he actually has nudes because he doesn't have a nude, like, a body.

0:38:02 Thomas: He gives real Ken doll energy to me. He's shiny. Yeah, he's shiny, boring looking. He's like a serial killer. Like a successful serial. You'd never be like, that strange man. You'd be like that totally normal guy who also is a psychopath.

0:38:18 Jenessa: He is very chill. Oops. I doubt John Roberts thinks that he will ever be justifiably arrested and need this protection as a criminal, but is still saying, what if I was arrested? Even though I did nothing wrong, I don't want the police to just go looking through my phone. That's unacceptable. And I should presume that without this ruling, they're going to do unacceptable things. So it's good news.

0:38:49 Ad: [Ad break 3 — ad music]

0:38:49 Jenessa: Then we get this other line of cases building up on the side. This line is saying you have a right to privacy, reasonable expectation of privacy. Privacy. And then on the other side, we got this thing, third party doctrine, which basically says it's a big problem. Info voluntarily disclosed to a third party. They don't have to get a search warrant if that third party just gives it to the cops. Normal situation. If you and I are just chit chatting and you confess to me or you let me in your house and I see evidence of a crime or like even if I broke into your house and I saw evidence of a crime, I can go running to the cops and that will not invoke the fourth amendment because I was just like acting as a private citizen. As soon as the cops come to me and ask me to go get information, I am acting on behalf of the government. It's not any different than if the cops did it themselves. They don't get to use a middleman and like get out of it.

0:39:53 Jenessa: If they come to be asking for information that already exists this and say, can you just give it to me though? Now we get into a gray area and it gets weird. Two cases, one in 1976 and one in 1979. So this is a pretty shortly after Katz.

0:40:14 Thomas: Musical yeah I'm not sure how that's relevant but okay okay it's but it's helping lydia anchor in

0:40:20 Jenessa: Yeah. We have in Miller, there's this guy and they think he might be committing these crimes and he's probably laundering money related to it. They go to his bank. Instead of getting a warrant, they just go to the bank and say, hey, can you pretty please give me some checks that he sent and I want to see it. And the bank does it. 7 -2, they say that is fine. No warrant, no problem.

0:40:35 Thomas: Time really

0:40:55 Jenessa: These were the bank's business records. It was their property to turn over. Those copies of checks. That was actually a financial negotiation instrument that you executed with the bank. And like you, you didn't have a reasonable expectation of privacy. I don't love that one.

0:40:53 Thomas: Yeah

0:41:12 Jenessa: Cause to me, if I like write a check and I give it to the bank teller, my landlord, the grocery store cashier, I absolutely expect you to keep that private. It has my bank account number on it.

0:41:12 Thomas: Yeah

0:41:25 Jenessa: If you posted a picture of that on social media, I would like sue you for revealing my identity. Like what is happening here?

0:41:25 Thomas: Yeah

0:41:34 Jenessa: I worry that this is like in that bad facts makes bad law kind of area that maybe they just wanted to not let people get away with stuff.

0:41:33 Thomas: Hmm

0:41:46 Jenessa: The reasoning is like you didn't expect privacy because you showed it to a third party and you gave it to them and you had to expect what? That they would give it to other people? No, I absolutely didn't. True.

0:41:40 Thomas: Yeah yeah I I think I I'm on your side of that I think I see the reasoning like yeah for all you you don't even know who in the bank is looking So it's like I kind of see where they're coming from, but it does seem like this this probably opened the floodgates to a series of bad decisions, because I also feel like if I write a letter to somebody, I feel like I would expect that's private between us. You know, it's not like, I mean, your privacy in your house, there might be a friend in there, but you still expect privacy within the house. But I guess it is a tough distinction.

0:42:32 Thomas: I guess if they learn of something that's like a crime, then they can go, yeah, okay.

0:42:38 Jenessa: And that's where it is that important distinction. If your friend is just of their own volition goes to the cops, guess you have a crappy friend. As soon as the cops go to your friend, we should think carefully about this, right? And this is where the cops went to the bank. And what? And I guess it's okay?

0:42:56 Thomas: Let me make sure I'm understanding. Is it that the cops are going to your friend or is it that they're putting your friend up to it? Like which which is the legal thing? If they think your friend knows about a crime, they can go ask your friend. Right.

0:43:12 Jenessa: Yeah, so generally like just an interrogation, questioning that's gonna be fine it's really more when it comes to giving up documents and stuff that it starts to get weird for sure putting your friend up to go do something in the future your friend is acting on behalf of the government now they might as well be a cop that's not great at all if it is just tell us what you know yeah that's that's almost always just gonna be a regular old interrogation. As soon as it's like, give me the documents that you have. Yeah, like when does it become compulsion? Do they have a right to give it? That is the biggest part. Do they a right to give up in the first place, kind of. And that's really what they're litigating here is this guy saying, those are my checks. Those are my bank records. And the court's like no, they were the bank's records.

0:43:46 Thomas: They're compelling you. Hmm. Yeah, I mean, I guess I kind of see that point.

0:44:10 Jenessa: It makes sense when you just look at it in the abstract. And then, like you said, where I worry is the way this then expanded. I feel like I had a reasonable expectation of privacy there. And then they go this other route and say, I mean, like, maybe you did, maybe you didn't. But no, you didnít because itís not yours. Regardless of the social standard that people very well may have a reasonable expectation of Privacy, it really that people have an expectation of Privacy. But we, the court, are declaring itís not reasonable. Reasonable nobody reasonably should be doing that that's where I think it starts to get dangerous is because like yeah people don't understand how any of this works so of course their expectations are maybe not reasonable because they don't know what's happening that'll really come to a head here in smith v maryland 1979 shortly after this is five three powell this is after cats oh

0:45:03 Thomas: Was Cats still going or is it? Well, Cats ran a long time on Broadway, so I think it was probably. Oh, when did Cats close? Well. Well, I'll look it up. It's fine. I thought Phantom was, but I could be wrong anyway.

0:45:09 Jenessa: Oh. Oh, God. I think it was the longest. Is it still the longest running? Maybe somebody beat the record by now.

0:45:19 Jenessa: Anyway. So Smith v. Maryland, 5 -3. Judge Powell's absent. That's why we don't have a total of nine. What they did is this guy suspected of committing a crime and then calling the victim and harassing them repeatedly. They go to the phone company. Again, they don't get a warrant, they just go to the telephone company and they say, hey, could we, pretty please, install what's called a pen register. It's a device that will, if we stick this on the line, it'll record all the numbers going in and out.

0:45:55 Jenessa: And the company says, all right, go ahead.

0:45:57 Thomas: But not like the content, just the number, just metadata kind kind of thing yeah

0:46:00 Jenessa: Right, it will not get, right, yes, exactly. It will not get the actual content of the phone call, just what number you dial is going to get recorded. And so 5 -3, the majority says you disclosed those numbers to the phone company, and then the phone Company disclosed it to the cops. Third party. What can you do? There's a dissent by Stewart that says like, hey, if we just keep a record of all the phone numbers you call, that can paint a very personal picture. This is getting getting invasive. Marshall, who dissented in Miller and in Smith v. Maryland, says this is getting to be a very extensive intrusion into your life. We are running into problems here. So he dissented on both of the third party doctrine. These two cases are considered like the cases that made third party doctrin. Perhaps not a coincidence, our first ever black justice is like, hey, hey, maybe don't let the cops without a warrant just ask third parties, can you pretty please let us snoop on other people and that's okay. A lot of Smith v. Maryland was like, yeah, you voluntarily disclosed and you knew that you were disclosing these numbers. And I'm like, stop right at you knew. No, they don't. Nobody knows how the telephone works in no universe.

0:47:26 Thomas: Yeah I was like back in the day you had to say tell an operator like connect me to whatever I guess that's sort of you telling another person but also you're not not really like it's just because you have to in order to make a call yeah

0:47:41 Jenessa: Right. They used that analogy. They were like, well, you know, it's not that long ago that you had to tell the operator who you wanted to talk to. So today, obviously, people know that the same thing is still happening. I was like, no, they don't. They definitely did not know this. Like, guess?

0:47:58 Thomas: Maybe back then they probably figured because it wasn't that that old they're probably like oh so they've automated that that operator thing that I used to have to do five seconds ago, like keeps the record of it.

0:48:06 Jenessa: Yeah. But like, would you know then that the telephone company keeps a record? Second of all, if the telephone company has the record, why did you have to go install a pen register to get the record?

0:48:17 Thomas: Oh yeah. That's interesting. Yeah. Why did they have to be able to do that? Why did I have to have that? Huh.

0:48:20 Jenessa: I don't know. I don' t get it. I do' t understand how this technology works. So it's a little weird to me that the court says, well, like, you knew you were disclosing those numbers to the phone company. And I was like, if they disclose it to the foam company, then what is this extra piece of technology even for so I maybe maybe

0:48:37 Thomas: It's just so they can get it in real time or something and not have to like go through records requests, I guess.

0:48:42 Jenessa: I don't know it's weird man it makes sense on a level certainly like you said once you verbally disclose information you don't expect that people are obligated to keep it secret from the government except I kind of do right like even without HIPAA if I told my doctor something like I don't expect my doctor to go tattle to everybody it's

0:49:07 Thomas: I was going to bring that up too, but I don't know if that fits. Cause it, do we just hold medical information and kind of a different category?

0:49:15 Jenessa: Funny that you say that because the court is often going to rely on just categorically some stuff is different that's how we'll get to this case usv jones we talked about it a little bit in the episode with matt this was one where a cop wanted to put a gps tracking device on a car they did actually get a warrant at first and this judge in dc said okay I have jurisdiction over dc so you have to do it here and you have to do it in the next 10 days because obviously, you know, we have to put time limits on things. And they did it on the 11th day in Maryland. So doesn't count, no warrant. The guy parks in a public parking garage and the cop sticks a GPS tracking device on it and tracked him for 28 days, 24 -7 because it's a, you knows, it's GPS.

0:50:05 Jenessa: It doesn't need to take a pee break like your tail would, right? This one is super interesting because on the one hand, we get 9 -0. You need a warrant. This is in 2012. But we have a huge split on why.

0:50:09 Thomas: Right

0:50:20 Jenessa: Scalia writes the majority. He's joined by Roberts, Kennedy, Thomas, and Sotomayor. And they say, hey, in Cats, we had this privacy thing, but also we didn't get rid of trespass. That guy touched your car. He couldn't get the GPS on it without touching it. He touched it. He needed a warrant.

0:50:18 Thomas: Hmm

0:50:43 Jenessa: I don't care if you've tracked him for 28 days or two minutes. You had to touch his car to do it. Trespass rule, done. Straightforward. So it's kind of a reminder. We never got rid of that. There's a concurrence from Alito joined by Ginsburg, Breyer, and Kagan. They say, I don' know, I think we kind of did. Like, we're not really focused on trespass anymore. More. We maybe did kind of get rid of that.

0:50:43 Thomas: Huh oh interesting in what sense I'm kind of not understanding that part of

0:51:13 Jenessa: They're like less worried that a cop walked up and physically had to touch your car to do this.

0:51:19 Thomas: It okay and maybe the reason being because someday they won't have to do

0:51:23 Jenessa: Partly that. Alito wrote it. So I just have a hard time being charitable of like what exactly was his reasoning. But like most of what they were focused on was the way he describes it is like, it was always okay. Think back to knots and the the beeper. It was always okay for cops to tail you.

0:51:25 Thomas: That oh right

0:51:43 Jenessa: You don't have a right to privacy on traveling on a public thoroughfare. And we let them use a beeper to like supplement that. So what I'm not going to say is just as technology advances, all of a sudden you can't do what you used to be able to do. We'll let you supplement. What is the real problem here? 28 days, I don't know where exactly the line is, but 28 days is too much. That's wild.

0:51:43 Thomas: Oh but not because of the warrant right they were treating this as without a warrant right

0:52:13 Jenessa: Correct. Again, this is the government trying to say we didn't follow the warrant, which means we might as well not have had one.

0:52:19 Thomas: Okay okay so we're treating like we didn't have one and you're saying well there's also got to be a a time threshold of like, if you just are following someone forever waiting to see if they do something wrong, even if you're technically not violating anything, like it's the, it's the amount of time you're doing it. That, that also just makes sense.

0:52:37 Thomas: But is that what they were saying? Or is that where you're saying?

0:52:39 Jenessa: No, that's what they are saying.

0:52:41 Thomas: Okay. Gotcha.

0:52:41 Jenessa: Exactly. Cops could physically, they could drive around and tail you. And so we'll let them replicate that with a GPS. But when they would tail you, that takes resources resources and time and like they need pee breaks and they lose you sometimes. But to tell somebody for 24 hours a day for 28 straight days, Scalia's metaphor of like the constable following you around that makes it okay to track people on a public thoroughfare, there's a very famous footnote where he says it would have to be either a very large coach or a very tiny constable or both.

0:53:19 Thomas: I remember the tiny constable. Okay, cool. So, but was the key distinction, like he was saying it's because of the trespassing thing and then the others were saying because of the length of time

0:53:31 Jenessa: Scalia and the majority five are saying it's because of the trespass thing two seconds is too long you touched the car the minority is saying I mean the real problem it's not so much that you touch the car it's that ain't no way a regular just constable following you around you know when they wrote the fourth amendment could have tailed you 24 7 for 28 days so I don't know know where exactly the line is, but that was over it. So whatever you could do without a warrant, that's too much. No, thank you. No.

0:54:05 Thomas: So wait I thought Scalia had the tiny constable quote right oh that's Alito had the Tiny Constable oh now I understand

0:54:10 Jenessa: That's Alito. Yeah. It's pretty clever for him. I don't normally expect him to be cutesy.

0:54:16 Thomas: Also it's yeah it's also way more on the right side of things than I would have thought am I

0:54:21 Jenessa: Well, I think the keeping the trespass standard does help because it's not getting rid of reasonableness. It is like on top of reasonable expectation of privacy. Scalia is saying if a trespass happens, done. I don't care the amount of time. I don't what technology was used. I don't about anything else. If they trespassed, they needed a warrant. Done. That is a very strict standard.

0:54:28 Thomas: Crazy okay okay uh -huh and so you're saying he's only saying that whereas the others were adding and also okay

0:54:51 Jenessa: Yeah, basically, it was 9 -0 to say you do need a warrant for what happened here. Why do you need a warrant? Couple of different reasons. Yeah. And we're a little divided on this. Yeah I'll leave you there and I'll leave you with this little teaser. The Scalia majority said trespass. The Alito concurrence said it's really about reasonableness and like what, you know, originalist kind of thing. Sotomayor was clearly the tie -breaking vote because she also wrote a concurrence that I think set us up for what the real problem is here.

0:54:58 Thomas: A couple different reasons okay okay interesting oh wow

0:55:30 Jenessa: Technology is advancing way faster and we need to rethink the entire concept knowing how technology has advanced.

0:55:40 Thomas: All right well what a what a cliffhanger I'm really excited to learn more about this great breakdown and uh I'm excited for part two I think we can have that ready early for patrons by the way patreon.com slash law but thanks for listening thanks for the breakdown and I'm excited to see you for part 2 well I guess for other stuff before then it sucks our format You're going to have to wait. You have to Wait a Week for Part 2 of the Breakdown, everybody. Unless you're a patron. All right. Thanks, Jenessa. Thanks, listeners. We'll see you very soon.

0:56:43 Jenessa: Does not have to zoom in on your butthole to be a problem.

0:56:46 Thomas: Grabbing that quote. It is our duty to sext with our Supreme Court justices, is what I'm saying. Nice animals doing fun stuff. Yeah, okay. I like it.

0:56:59 Jenessa: I should take this cough drop out. I just realized I was making a hundred mouth noises.

0:57:01 Thomas: You're a cop. Oh, boy. Oh, boy.

0:57:07 Jenessa: It's just going like into the mic.

0:57:08 Thomas: All right, yeah. You also might want to put away any popcorn you're eating or...