Here’s What Happens When the Supreme Court Talks About Cell Phones for Two Hours

From airplane mode to encryption to “bzzz” noises, the Supremes tried their best to show off their command of mobile technology.

People use smartphones to photograph the Nicholas K show during the Mercedes-Benz Fashion Week Fall 2013 collections on February 7, 2013.
National Journal
Dustin Volz
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Dustin Volz
April 29, 2014, 12:31 p.m.

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 — ­­

DREEBEN: Yes.

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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