April 2014

Supreme Court Taking Up Police Searches of Data Troves Known as Cellphones

In a major test of how to interpret the Fourth Amendment in the digital age, the Supreme Court will consider two cases about whether the police need warrants to search the cellphones of the people they arrest.

“The implications of these cases are huge,” said Orin S. Kerr, a law professor at George Washington University, noting that about 12 million people are arrested every year, often for minor offenses, and that about 90 percent of Americans have cellphones. The Justices will have to decide how to apply an 18th-century phrase -- the Fourth Amendment’s prohibition of “unreasonable searches and seizures” -- to devices that can contain 100 times more information than is in the Library of Congress’s 72,000-page collection of James Madison’s papers. The courts have long allowed warrantless searches in connection with arrests, saying they are justified by the need to protect police officers and to prevent the destruction of evidence. The Justice Department, in its Supreme Court briefs, said the old rule should apply to the new devices. Others say there must be a different standard because of the sheer amount of data on and available through cellphones.

Justice Scalia set to play key role in Supreme Court smartphone case

Justice Antonin Scalia, the Supreme Court's new champion of the 4th Amendment, is likely to play a crucial role when the court hears this year's most important search case: whether the police may routinely examine the digital contents of a cellphone confiscated during an arrest.

Civil libertarians say the stakes are high because arrests are so common -- 13.1 million were made in 2010, according to the FBI -- and smartphones hold so much private information. Under current law, officers may search a person under arrest, checking pockets and looking through a wallet or purse. The question is whether a smartphone carried by the person is also fair game. "It's all of your personal information," said Norman Reimer, executive director of the National Assn. of Criminal Defense Lawyers, which opposes giving police such powers. "It's an incredible exposure of your privacy." In the past, defense lawyers did not look first to the conservative Justice Scalia as an ally. But in recent years, he has insisted on forbidding the kinds of "unreasonable searches" that he says would have troubled the framers of the Constitution.

Smartphones and the 4th Amendment

[Commentary] More than 90 percent of American adults own a mobile phone, and more than half of the devices are smartphones. But “smartphone” is a misnomer. They are personal computers that happen to include a phone function, and like any computer they can store or wirelessly retrieve enormous amounts of personal information: emails, photos and videos; document files; financial and medical records; and virtually everywhere a person has been. The Supreme Court will consider whether law enforcement officers during an arrest may search the contents of a person’s mobile phone without a warrant. The court should recognize that new technologies do not alter basic Fourth Amendment principles, and should require a judicial warrant in such circumstances.

The Supreme Court has recognized the need to adapt to new technologies, as when it ruled that the government attaching a GPS tracking device to a private car was a Fourth Amendment search. For better or worse, mobile phones have become repositories of our daily lives, and will become only more powerful over time. As a rule, the police should have to get a warrant to search them.

Supreme Court should outlaw warrantless smartphone searches

[Commentary] The Supreme Court justices may not fully understand the capacity of smartphones, but we hope they will by the time the oral arguments are complete. They should be sophisticated enough to realize that police should not have unlimited rights to peruse and download the contents of Americans' tech devices without a warrant.

The Wire Next Time

[Commentary] The Federal Communications Commission proposal to allow Internet service providers to charge different rates to different online content companies -- effectively ending the government’s commitment to network neutrality -- set off a flurry of protest. The uproar is appropriate: In bowing before an onslaught of corporate lobbying, the commission has chosen short-term political expediency over the long-term interest of the country. But if this is the end of net neutrality as we know it, it is not the end of the line for fair and equitable Internet access. Indeed, the commission’s decision frees Americans to focus on a real long-term solution: supporting open municipal-level fiber networks. American cities need fast, cheap, ubiquitous, open fiber networks, and every city has the tools at its disposal to get these networks built. But there are powerful and well-funded incumbents who will fight any mayor brave enough to consider the idea. If you’re furious about your cable bill and worried about net neutrality, go tell city hall.

[Crawford is a visiting professor at Harvard Law School]

New Challenges Chip Away at Cable’s Pillar of Profit

[Commentary] For decades, cable television has been an almost magical source of profits, in large part because of the bundle, the packaging of channels that compels subscribers to buy a lot of programming they never watch. On April 22, that bundle seemed to be fraying on all fronts.

The threat was most visible in the Supreme Court, but before we get to those august halls, it’s worth remembering that the bundle has been a robust generator of profits in all manner of industries. Every time you order a value meal at McDonald’s, you are ordering a bundle. You, um, benefit by getting a lot of food -- a container of French fries the size of your head -- and McDonald’s benefits by selling you more than you really wanted. My cable bill is the same way. I don’t watch Animal Planet or TruTV, but I pay for them as part of a package that includes the channels I do want. The cable industry books that inefficiency as profit. It is the lucrative lifeblood of the current entertainment business. Clearly, much is at stake in the current bundling arrangement, which has some powerful backers, but a future where consumers will be able to assemble an à la carte menu of entertainment suddenly seems much closer.

Comcast downsizes in Charter deal

Comcast and Charter announced a divestiture plan that would take effect after the close of the Comcast-Time Warner Cable merger. Charter would acquire about 1.4 million of Time Warner Cable's current subscribers in a cash deal, boosting its customer base from 4.4 million to 5.7 million. Comcast and Charter will also swap about 1.6 million existing Time Warner Cable customers and 1.6 million Charter customers in a "tax-efficient like kind" exchange.

After a tax-free reorganization, the "new" Charter will also acquire about 33% of a new Comcast-created and publicly-traded spin-off company with about 2.5 million current Comcast customers. Overall, these transactions, contingent on the approval of the merger between Comcast and Time Warner Cable, the deals would result in Comcast divesting about 3.9 million customers. That would put Comcast's managed residential subscriber base below 30% of total cable TV subscribers in the U.S., the same market share the company had in past deals with Adelphia in 2006 and AT&T Broadband in 2002, Comcast says.

Rep Anna Eshoo taps into Silicon Valley ties to seek key position

Rep. Anna Eshoo (D-CA) is tapping into her Silicon Valley ties as she seeks the top Democratic position on the powerful House Commerce Committee.

Rep Eshoo, who represents Palo Alto, recently formed a political action committee to collect donations that she in turn is donating to the campaigns of Democratic lawmakers facing tough re-election battles. The pass-through of money, all perfectly legal, is how senior members of Congress work to secure and maintain plum leadership positions. It's also how companies support senior lawmakers in hopes they will be remembered down the road. Federal Election Commission records show that Rep Eshoo filed paperwork on Feb. 24 to organize the "Peninsula PAC." The political action committee has collected more than $200,000. It has distributed about $96,000 to the campaign committees of two dozen lawmakers facing tough re-election battles, such as Reps. Ami Bera (D-CA), Julia Brownley (D-CA), Raul Ruiz (D-CA) and Scott Peters (D-CA), the FEC records show. The four freshmen are the GOP's top California targets in this year's midterm elections. The people and companies donating to the Peninsula PAC reads like a who's who of technology companies and their chief executives. The political action committees for Google, Oracle, Hewlett-Packard, Intel and Cisco were among the tech companies that gave $5,000, the maximum amount per year, to Eshoo's committee. Several Oracle executives, including founder Larry Ellison, also donated the maximum allowed. Jude Barry, a San Jose political strategist, said the region's companies are striving to increase their clout in Washington, so the donations are an extension of that focus.

By Digitizing Images, Museum Opens a Window Into the Past

The American Museum of Natural History in New York is launching an archival digital special collections database to give researchers, students and laymen alike access to a trove of photographs, lantern slides, rare book illustrations, drawings, notes, letters and memorabilia that provide a rare backstage view of its exhibits and explorations, much of it previously unavailable to the public. Until now, the 7,000 images available online at images.library.amnh.org/digital were accessible only at the museum’s fourth floor research library.

Despite Twitter Backlash, New York Police Dept. Plans to Expand Social Media Efforts

For the first few months of his second tour as commissioner of the New York Police Department, William J. Bratton has been consumed in large part with reshaping perceptions of officers. He told a closed-door meeting of chiefs and supervisors in January that his administration would use social media to bring positive police stories directly to the public. “How do we utilize that in a way to get our message out more significantly without having to rely on the media to tell our story?” Bratton asked rhetorically, according to a video of the meeting.

So at a social media strategy meeting when a detective in charge of the department’s Twitter account floated the idea of soliciting photos of ordinary people posing with officers, it hardly struck anyone as risky. It was rapidly approved, and the detective chose a hashtag: #myNYPD. The response was immediate, if not in the way Bratton had anticipated. Twitter users provided not smiling snapshots but a rushing commentary on every controversy and harsh police tactic of the last few years, including the stop-and-frisk policy, the bloodying of Occupy Wall Street protesters and police shootings. The flood of uncomfortable photographs rattled some officers on the street, who quietly questioned the wisdom of opening up to the crowds on Twitter. Many on social media scoffed at what they said was a public-relations debacle. But to Zachary Tumin, tapped by Bratton to drag the department into the roiling waters of Twitter and other social media, it was a signal to the city and its police officers that the department was comfortable trying new things, even if the blowback was large and public.

Benton

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