The indefatigable Supreme Court justices have suffered some teasing recently for presiding over cases where it appears they might not be exactly up to speed on how some modern technology works.
But during two hours of oral arguments Tuesday for a pair of cases dealing with whether police should be able to warrantlessly search cell phones during an arrest, some justices appeared eager to show off their tech-savvy bona fides — or good-naturedly mock their own ignorance.
Justice Sonia Sotomayor, for one, had a lengthy exchange with Deputy Solicitor General Michael Dreeben about the virtues of airplane mode. Emphasis added throughout.
JUSTICE SOTOMAYOR: Why can’t you just put the phone on airplane mode?
MR. DREEBEN: First of all, it is not always possible to find airplane mode on all the 500, 600 models of phones that are out there. The officer has a lot of things to do when he arrests suspects. Say he arrests five suspects in a car and they each have three cell phones. Trying to find and put each one of them into airplane mode and then go the further step and —
SOTOMAYOR: You’re you’re confusing me, because if you haven’t searched on the scene, then the wipe is going to happen. If you’ve had enough time at the precinct to put it on airplane mode, the wipe hasn’t happened.
DREEBEN: Well, that’s not necessarily true, Justice Sotomayor.
SOTOMAYOR: I’m a little confused about what this argument is. Either you do it at the scene and you protect the phone —
SOTOMAYOR: — or you do at the station, and you have enough time to get the warrant by putting it on airplane mode.
DREEBEN: Well, you don’t necessarily have enough time to get the warrant if you do it at the scene. That — that’s certainly true. I think even —
SOTOMAYOR: I don’t disagree. Put it on airplane mode.
DREEBEN: Even if you bring it back, the assumption that we’re going to have airplane mode and that the Court should craft a constitutional rule around airplane mode assumes that cell phones are not going to be able to be used in airplanes in the next five years and that manufacturers will continue to make an easily available button for airplane mode. I don’t think the Court should found a constitutional ruling on that assumption.
Later, the conversation turned to encryption of mobile devices. Multiple justices admitted they didn’t fully understand the concept, leading Justice Stephen Breyer to jokingly confess he didn’t even know which phone he owned.
JUSTICE SOTOMAYOR: Please tell me about encryption, because I know people can encrypt, but I thought they had to do that when they put the information in the phone.
MR. DREEBEN: No. As best I understand it, Justice Sotomayor, many smartphones today are equipped with built-in encryption.”¦ Now, if the phone is on and functioning because the person has been arrested while they are, for example, making a phone call, you can get access to the phone and you can attempt to get information from the phone without the encryption key being an obstacle. But if the encryption is deployed, that can sometimes be an insuperable barrier even to the manufacturer.
SOTOMAYOR: I’m not sure how on the scene the police are going to look at everything in a cell phone anyway. They’ve got to be doing something to save it. If the encryption can be —
DREEBEN: Well, no. The evidence is — the information on the phone is encrypted — this is my understanding, Justice Sotomayor — but the phone itself has the key to decrypt it because the user obviously wants to get access to the information.
JUSTICE BREYER: I mean, you have a problem. Apparently, neither you nor I actually have this on their phone, as far as I know. So I’m imagining something. Maybe you have it. There is some kind of system that once it goes “bzzz,” you never can get the stuff again except after eight months, and when this “bzzz” happens, is it happens at least ten minutes after the arrest and not before, so the policeman would have time to look at it. But the by the time you get to the stationhouse, the “bzzz” has already happened, so now nobody else can. Maybe there is such a thing. I’ve never heard of it before this minute or before the briefs. Well, why wouldn’t you see I’m similarly incredulous about it from my tone of voice because I don’t see why somebody who wanted to “bzzz” actually to keep the police away wouldn’t do it after 30 seconds.
DREEBEN: So if you have an iPhone, Justice Breyer, and I don’t know what kind of phone that you have —
BREYER: I don’t either because I can never get into it because of the password.
Chief Justice John Roberts, however, tried his best to demonstrate a vague awareness of popular social media apps:
CHIEF JUSTICE JOHN ROBERTS: What about something like Facebook or a Twitter account? There’s no real — there’s no — any privacy interest in a Facebook account is at least diminished because the point is you want these things to be public and seen widely.
MR. FISHER: Well, Mr. Chief Justice —
ROBERTS: So I guess my question would be: Could you have a rule that the police are entitled to search those apps that, in fact, don’t have an air of privacy about them?
And later, Roberts revealed his affinity for Fitbit, and his concerns about wearable tech:
CHIEF JUSTICE ROBERTS: What if you have a device that doesn’t have the broad information that a smartphone has, but only a very limited, like a Fitbit that tells you how many steps you’ve taken, and the defendant says, I’ve been in my house all afternoon, and they want to check and see if he’s walked 4 miles. It’s not his whole life, which is a big part of your objection. Is that something they can look at?
Lest you think the Supreme Court is becoming young at heart, the word “billfold” was mentioned 11 times during arguments, mostly by Justice Samuel Alito.
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