Friday, February 5, 2016
“Law is a way of reimagining the real.” – Cultural Anthropologist Clifford Geertz
A ‘stickiness principle’ has shaped Fourth Amendment jurisprudence. According to this principle, different concepts, facts and assumptions about reality often adhere to each other. This stickiness is particularly evident in pre-digital court opinions, and often is revealed in the vocabulary used to describe items in the physical world, suggesting items had only a single function. For example, the function of sunglasses was to block the sun. Wrist watches were intended to tell time. Cars provided transportation.
Fourth Amendment privacy mostly dwelt within bright-line boundaries, such as those provided by doors and walls. When questions about digital privacy were at issue, the Supreme Court often struck a similar note, sticking to spatial notions of long-established physical world understandings. In the recent case of United States v. Jones, for example, Justice Scalia, writing for the majority, viewed a GPS tracker placed by the police on a private car without permission as a trespass, essentially ignoring the functional capacity of the device to track the auto for weeks at a time. Jones and other cases served as evidence of the continuing vitality of the Stickiness Principle, not its demise.
Technological advances, however, are threatening the foundation of the stickiness principle through the creation of powerful new realities that expand the functionality of items. Imbuing traditional appliances and items with new functions have reshaped cultures and understandings. As Jony Ive, the Apple designer behind the iMacs and iPod, has noted: Look at that chair, we understand it because its form and function are the same thing, which is how the manufactured world has been for hundreds of years . . . And then incredibly and relatively recently, there’s this opportunity, but with a set of problems, to create objects whose forms don’t hint at what they do. And they’re packed with incredible sophistication and capability.
This paper argues that the Supreme Court needs to untether form from function in evaluating Fourth Amendment claims and begin to focus more on the expanding functionality. The functionality of a cellphone as a wireless computer, for example, does not generally implicate the rationales justifying a search incident to a lawful arrest. Riley v. California, and its companion case, United States v. Wurie, offered the Supreme Court precisely this opportunity — to begin separating form and function in order to discern the “reasonableness” of searches.
Riley and Wurie involved challenges to warrantless police searches of cell phones incident to lawful arrests. In Riley and Wurie the Court’s decision required it to categorize the cell phone — was it the equivalent of a container, written records, a corded phone, or something else altogether? A unanimous Supreme Court agreed that a warrantless search incident to a lawful arrest of a suspect’s cell phone was not constitutionally justified by the search incident to a lawful arrest exception. The Court’s decision reflected its view that the container form of the phone did not define or cabin its extraordinary data functions. In doing so, the Court took a big step forward in accepting new realities and the untethering of form and function in a rapidly changing world of technology. Yet the Court could have gone further in this case to destabilize the stickiness principle. In Riley, a “smart” phone was at issue. In Wurie, there was no data connection on the wireless phone. Both phones were given the same consideration, again indicating the strength of the stickiness principle by implicitly lumping together form and function.
The paper is divided into four sections. After this introduction, the second section provides background on the advancing realities of technology and outlines the Riley decision. The third section advances an untethered conception of the Fourth Amendment as an individual right to autonomy, as well as a collective regulatory check on governmental access, gathering, and analysis of information, using functionality as the baseline for what constitute reasonable Fourth Amendment searches. The paper concludes in its fourth section that the separation of form and function leads to a 21st Century understandings of the Amendment.