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America’s Libertarian Moment?

I work at the libertarian Cato Institute (aka, America’s most effective think tank), and I think libertarianism is the philosophy that best reflects human decency. But I sometimes wonder why libertarians aren’t more persuasive and why there aren’t any libertarian societies. However, maybe there’s a light at the end of the tunnel. I’ve been asked […]

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What Happens When Libertarian Fantasies Become Reality?

No, this post is not about that kind of fantasy. Instead, we’re dealing strictly with public policy and specifically addressing whether the libertarian agenda is unrealistic. This is because when I talk to people about libertarianism, they often will say something mildly supportive such as: “I like the idea of getting government out of my […]

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Libertarianism and Human Decency

Some people confuse being libertarian with being libertine. I’m sometimes asked, for instance, if I’m a libertarian because I want to smoke pot or do other drugs. I respond that I’ve never done drugs and have no desire to use drugs. Then I’m asked if I’m a libertarian because I want to gamble. I respond […]

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Broad Stripes and Bright Stars

In one of her first posts here, Jess said this: When I was ten, I lived in America for a year – in the mid-West. I remember when we got to O’Hare airport looking at its size and marvelling; it seemed bigger than the town in which we lived in Wales. I recall going to […]

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Broad Stripes and Bright Stars

In one of her first posts here, Jess said this: When I was ten, I lived in America for a year – in the mid-West. I remember when we got to O’Hare airport looking at its size and marvelling; it seemed bigger than the town in which we lived in Wales. I recall going to […]

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Supreme Court Upholds Digital Privacy In Major Decision

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In a far reaching decision that establishes a major precedent for digital privacy, the Supreme Court ruled unanimously that warrantless searches of cell phones are unconstitutional except in very narrowly defined circumstances for “exigencies” that arise, such as major security threats.

The case involved was Riley v. California, a case the Court chose out of a group of ten cases involving warrantless searches of cell phones after an arrest.

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In a 1973 decision, United States v. Robinson, the Court had ruled that the police can conduct a complete search of an arrestee’s person, but they recognized in today’s decision that a cell phone represents different territory, as Chief Justice John Roberts explained:

Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans “the privacies of life,” Boyd, supra, at 630. The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought. Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple— get a warrant.

While Robinson’s categorical rule strikes the appropriate balance in the context of physical objects, neither of its rationales has much force with respect to digital content on cell phones. On the government interest side, Robinson concluded that the two risks identified in Chimel—harm to officers and destruction of evidence—are present in all custodial arrests. There are no comparable risks when the search is of digital data. In addition, Robinson regarded any privacy interests retained by an individual after arrest as significantly diminished by the fact of the arrest itself. Cell phones, however, place vast quantities of personal information literally in the hands of individuals. A search of the information on a cell phone bears little resemblance to the type of brief physical search considered in Robinson.

Justice Roberts wrote that a cell phone could lay bare someone’s entire personal history, from their medical records to their “specific movements down to the minute” and noted that there was a huge difference between asking someone to turn out his pockets versus “ransacking his house for everything which may incriminate him.”

The storage capacity of cell phones has several interrelated consequences for privacy. First, a cell phone collects in one place many distinct types of information—an address, a note, a prescription, a bank statement, a video—that reveal much more in combination than any isolated record. Second, a cell phone’s capacity allows even just one type of information to convey far more than previously possible. The sum of an individual’s private life can be reconstructed through a thousand photographs labeled with dates, locations, and descriptions; the same cannot be said of a photograph or two of loved ones tucked into a wallet. Third, the data on a phone can date back to the purchase of the phone, or even earlier. A person might carry in his pocket a slip of paper reminding him to call Mr. Jones; he would not carry a record of all his communications with Mr. Jones for the past several months, as would routinely be kept on a phone.

This is a huge win for the Fourth Amendment and protection against unusual searches and seizures, and the first victory for an individuals right of privacy in some time.

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