Foreword: Accounting for Technological Change

By Kerr, Orin S. | Harvard Journal of Law & Public Policy, Spring 2013 | Go to article overview

Foreword: Accounting for Technological Change


Kerr, Orin S., Harvard Journal of Law & Public Policy


Changing technology presents a recurring problem for lawmakers. Laws are enacted with a background understanding of the facts. When those facts change, the effect of the old legal rules can change along with them. A law created for one world may have a very different impact when applied to the facts of a different era. As a result, changing technology and social practice often trigger a need for legal adaptation. Maintaining the function of old rules can require changing those rules to adapt to the new environment.

Consider an example currently dividing the lower courts. The subject is the Fourth Amendment. Here's the broad issue: When the police lawfully arrest someone, can they search the person arrested? If the officers come across an item found in the arrestee's pocket, can they search that item as well? And here's the specific question that has split the lower courts: What if the item is a cell phone? (1)

The Supreme Court last weighed in on this question in a 1973 case, United States v. Robinson. (2) Robinson recognized that warrantless searches of a person further two government interests. First, searches can protect the safety of the officer because the officer can search for weapons to disarm the arrestee. (3) Second, searches can preserve evidence of the crime of arrest that the person might be carrying at the time he was brought into police custody. (4) The Robinson Court that these interests justified a bright-line rule: Thus, "a full search of the person" is always permitted at the time of a lawful arrest. (5) A bright-line rule was appropriate even if the extent to which the search furthered the government's interests might vary in individual cases. (6)

Robinson made sense in its day. In 1973, a search of a person incident to arrest might include a search for a weapon or a search through a person's pockets. Those pockets might contain keys, a wallet, cigarettes, or a small amount of narcotics. But the "full search" contemplated by Robinson was necessarily a brief search. People can carry only a limited amount of physical property on their persons. As a result, Robinson allowed a full search but also a narrow one. In that context, a bright-line rule avoided litigation over relatively small factual variations. A search incident to arrest was not likely to veer so far from the legitimate interests that justified its scope.

But that is no longer true today. In 2013, most people walking down the street carry a cell phone. (7) More than half of those cell phones are so-called "smart phones," which are multifunctional computers that just happen to have telephone capabilities. (8) Modern cellular phones can carry an extraordinary amount of information. The storage capacity of the popular Apple iPhone 5 ranges from 16GB to 64GB, (9) which is the equivalent of many millions of pages of text and similar to the typical storage capacity of a home computer sold in 2004. (10) Plus, the capacity and speed of cell phones is not fixed. Every year witnesses the introduction of new models with more speed, more capacity, and better features.

Much of the information stored in a person's cellular phone is deeply personal. The information can include photographs, text messages, e-mails, personal notes, records of visited websites, and many other kinds of personal information. The mantra of the smart phone era is that "there's an app for that," (11) indicating that there is a program to fulfill every need. But "apps" also keep records. Every app means a record of how that app was used. As a result, the cell phones so many of us carry around are not only portals to the rest of the world or sophisticated computers that fit in our pockets. They are also storage devices that contain a remarkable amount of information about who we are, what we know, and what we have done.

Robinson allows the police to conduct a full search of the person incident to any arrest. But now that people regularly carry cell phones, the Robinson rule allows a search much more vast that it allowed in 1973. …

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