Digital Privacy: “Third Party Doctrine”, Smith v. Maryland, Riley v. California, People v. Schutter.

i'm jeffrey rosen the president of the National Constitution Center and i'm sitting here with neil cat yowl former acting Solicitor General of the United States we're here to talk about the Supreme Court privacy & Technology you mentioned justice Sotomayor a separate opinion which was very interesting and influential she said really the court should reconsider this whole idea that when I surrender information to a third party for one purpose I abandon all expectation of privacy in it for all purposes tell us about this third party doctrine and why justice Sotomayor thinks the court should reconsider it yeah this is justice Sotomayor is best opinion on the Supreme Court indeed perhaps her best opinion ever what she understood she understood two things one was she said physical trespass and stuff that's all outdated that's just the facts of this case she knew that the government has the technology to surveil from up on high with drones or with planes or with satellites and contract individuals so you don't need to actually physically touch the Jeep in order to get 24-hour surveillance on the Jeep and so she said look let's set aside this trespass stuff and talk about what's really the problem which is 24 hour a day mass surveillance and a government that has no checks and balances to prevent it and then she said one of the problems is that there's an old supreme court case from 1979 Smith versus Maryland which suggests that when you turn information over to a private party that you've essentially abandoned your expectation of privacy in it and so she said we should rethink that and make sure that that comports with an era of digital privacy in which so much of what our daily lives is done on the internet and surrender to third parties whether their internet service providers like America Online or whatever we're telephone companies well that case that you mentioned the Smith versus Maryland was very much at issue in another important case that the Supreme Court unanimously decided recently and that one involves cell phone privacy the question in Riley which was the name of the case is whether the police when they arrest you can search the contents of your cell phone and once again all nine justices unanimously said no why did they hold that given the fact that previous cases it said that it's fine when cops arrest you to open up a container like a cigarette packets that's found on your person and to search it to protect officers and to prevent the destruction of evidence what's the difference between a cigarette package and a cell phone according to nine justices of the Supreme Court it so the question and Riley is ok you suspect someone of wrongdoing and you arrest them and you trigger lawful process as a law enforcement officer what are you allowed to do then well for years it's been well understood that the government can see it can look at whatever happens to be on that person a so-called search incident to arrest so predominantly what they're worried about here is weapons of some sort they can pull the knife out and stab the cop or something like that in the course of arrest so obviously there's a public safety component at the time you're resting someone and you want to make sure that law enforcement has the ability to search someone to make sure they don't have something dangerous then this doctrine got expanded to be not just about pure safety but something more than that and the example that you references you know if there's a man who's being arrested on a drug offense and he's got a crumpled-up cigarette container and can the cops open it up they do they open it up they look at it they find heroin in it then the question is is that a permissible search the Supreme Court said it was based on that reasoning the federal government as well as many states have said look if we arrest you for whatever reason and you have your cell phone on you we can look at the cell phone indeed in this town of Aspen there was a big case about this a couple years ago about just a regular flip phone and could the government look at all the numbers on that on that flip phone well the question in Riley is much more profound because cell phones now look very different than then Aspen founded two years ago it's not just phone numbers it's everything if you think about what is on your smartphone now it's emails to your loved ones it's sensitive financial information maybe health information job information all sorts of different things are on your cell phone today and so the government said well that doesn't really matter it's still the same thing there's still a public safety component to it maybe you'll wipe the cell phone or you'll have your Confederates wipe the cell phone if you're arrested and so we need to be able to get access to it and search the entire phone nine justices of the US Supreme Court there are only nine couldn't get worse than that for the government all said that is to use the legal term poppycock that at the end of the day the government was asserting such a robust search power that it went beyond what the Constitution's design was about that's very well expressed in Justice John Roberts evoked thus hated writs of assistance and general warrants that the framers of the Constitution denounced and that sparked the American Revolution