BREAKING | Supreme Court Makes Sweeping Endorsement of Digital Privacy

By Robert Barnes, The Washington Post

25 June 14

he Supreme Court ruled unanimously Wednesday that police generally must obtain a warrant before searching the cellphone of someone they arrest, saying it was applying to modern technology the same privacy rights that date back to the nation’s birth.

Modern cellphones “hold for many Americans the privacies of life,” Chief Justice John G. Roberts Jr. wrote, in a sweeping opinion that seemed to contain warnings about the government’s ability to monitor the private lives of its citizens.

“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,” he wrote.

Roberts said that in most cases when police seize a cellphone from a suspect, the answer is simple: “Get a warrant.”

At oral argument, the court seemed divided on the cases. But they united behind soaring language from Roberts about privacy concerns in the digital era at a time when government surveillance programs dominate headlines and the cellphones that 90 percent of Americans carry contain sensitive information and a record of their whereabouts.

“There are apps for Democratic Party news and Republican Party news; apps for alcohol, drug, and gambling addictions; apps for sharing prayer requests; apps for tracking pregnancy symptoms; apps for planning your budget; apps for every conceivable hobby or pastime; apps for improving your romantic life,” Roberts wrote.

The court in the past had approved searching a cigarette pack found on a suspect, Roberts noted. But allowing police to look at a cellphone was more akin to allowing them to ransack a person’s home.

“Indeed, a cell phone search would typically expose to the government far more than the most exhaustive search of a house: A phone not only contains in digital form many sensitive records previously found in the home; it also contains a broad array of private information never found in a home in any form,” such as tracking a person’s movement.

Justice Samuel A. Alito filed an opinion concurring in the judgment, despite reservations about what it might mean for law enforcement.

He also urged legislatures and Congress to get involved.

“Many forms of modern technology are making it easier and easier for both government and private entities to amass a wealth of information about the lives of ordinary Americans, and at the same time, many ordinary Americans are choosing to make public much information that was seldom revealed to outsiders just a few decades ago,” Alito wrote.

“In light of these developments, it would be very unfortunate if privacy protection in the 21st century were left primarily to the federal courts using the blunt instrument of the Fourth Amendment.”

In general, warrants are required for searches, but the court’s precedents have said that a person’s privacy expectations diminish considerably after an arrest. Police may protect themselves and others by searching the arrestee for weapons or securing evidence that might be destroyed.

Roberts said he “cannot deny” that the decision will have an impact on the ability of law enforcement to combat crime. “Privacy comes at a cost,” he wrote.

But he said police can use their own technology to ensure that the information on cellphones that might contain critical evidence is not erased or lost. He also said there could be “case-specific”exceptions to the warrant rule.

The decision settled a question that has divided and vexed lower courts: how to apply age-old privacy protections to a world transformed by technology.

The court considered two such cases in which courts came to different conclusions.

Brima Wurie was picked up in Boston on suspicion of selling crack cocaine in 2007. While he was in police custody, his flip-style phone kept receiving calls from a number identified as “my house.”

Using the telephone number and a reverse directory, police located his address, obtained a warrant to search his home, and found crack, marijuana and a weapon.

In a 2-to-1 decision, a panel of the U.S. Court of Appeals for the 1st Circuit threw out the evidence against Wurie. The majority endorsed a rule that said warrantless cellphone data searches are “categorically unlawful,” given the “government’s failure to demonstrate that they are ever necessary to promote officer safety or prevent the destruction of evidence.”

A case from California went the other way.

David Leon Riley was pulled over in 2009 by a San Diego police officer for an expired registration. Police quickly discovered that Riley’s license was suspended and later found guns under the car’s hood.

Police also examined his smartphone and found language that led them to believe Riley had gang connections. A photograph on the phone linked him to a car that police said had been used to flee a shooting.

Riley was indicted on murder and other charges, convicted and sentenced to more than 15 years in prison.

A California court upheld the officers’ actions, and similar conflicting decisions have been recorded throughout the country.

Why Eric Cantor's Defeat Wasn't So Shocking

By Frank Rich, New York Magazine

25 June 14

Every week, New York Magazine writer-at-large Frank Rich talks with contributor Eric Benson about the biggest stories in politics and culture. This week: the tea party offs Eric Cantor; what Cantor's loss means for immigration reform; and the rocky launch of candidate Hillary Clinton.

Eric Cantor, the Majority Leader of the House of Representatives, was ousted last night in his Republican party primary by an unknown economics professor named David Brat. Cantor's loss is one of the most shocking political upsets of recent years, not only because House leaders simply don't get ousted in primaries, but also because virtually no one in the national media seems to have considered the possibility that this could happen, much less predicted it. How the hell did Cantor lose? And what does this say about the state of the so-called GOP civil war?

Cantor’s fall, and the fact that no one in the mainstream press saw it coming, is yet another indication that the biggest political story since Obama’s 2008 victory remains baffling to many. How many times can one say this? The radical right — whether it uses the tea party rubric or not — has seized control of one of America’s two major political parties. The repeated reports of the tea party’s demise are always premature. Back in the fall of 2012, in the weeks before Obama’s reelection, I wrote a piece titled “The Tea Party Will Win in the End” making this case and arguing that signs seemingly suggesting otherwise (the tea party dropping to a 25 percent approval rating in a September 2012 Wall Street Journal-NBC News poll; the demise of Michele Bachmann) were utterly misleading. After Todd Akin & Co. were routed that November, the tea party was dead again. When a fresh round of tea-party obituaries started appearing this spring — hey, Mitch McConnell won his primary, the Establishment is back! — they, too, should have been ignored. In terms of the big picture, McConnell’s victory — achieved only after he hired Rand Paul’s campaign manager and moved further to the right — was as politically meaningless as Mitt Romney’s ultimately winning the 2012 GOP nomination. The two thirds to three quarters of 2012 GOP voters who routinely supported the candidates to Mitt’s right in primary season were the true indicator of where the party is.

Brat is an Ayn Rand conservative. Speaking with Chuck Todd of NBC News this morning, he wouldn’t even endorse a federal minimum wage. He is unambiguously opposed to immigration reform. He speaks in a populist tone. “Dollars don’t vote,” Brat said after his victory — a reference to the fact that Cantor outspent him by 26-to-1 but also a slam of the Wall Street and K Street financial and corporate elites who fattened Cantor’s campaign piggy bank. Cantor, meanwhile, was everything Brat is not: He is a favorite of the financial industry. He tried to play both sides of his party’s immigration divide by simultaneously claiming to be in favor of some kind of reform and yet doing nothing to advance a bill in the House. He may be an exemplar of right-wing villainy to liberals, but to his own party’s faithful, he was a squish.

If you listen to Mark Levin, Glenn Beck, Laura Ingraham, or other voices of the grass-roots right, the base’s loathing of Cantor and possibly his primary defeat would not have come as a shock. If your sole sampling of Republican opinion is the relatively establishmentarian Fox News, you might have missed it. You certainly would have missed it if you think today’s GOP is represented by the kind of Republicans who swarm around Morning Joe, where Chris Christie and Jeb Bush are touted daily as plausible GOP saviors who might somehow get the nomination. The Times, meanwhile, ran Brat’s name only once in the past year, and was so dumbfounded by his victory that it ran a piece of analysis last night under the headline: “Why Did Cantor Lose? Not Easy to Explain.” It is quite easy to explain if you’ve been paying attention to the history of the American right since Barry Goldwater’s insurgents first took down the GOP Establishment a half-century ago. Or if you had simply turned on talk radio in the past five years.

A major survey released Tuesday by the Public Religion Research Institute and the Brookings Institution found that 62 percent of Americans favor providing undocumented immigrants with a way to become U.S. citizens. The president of the traditionally Republican-leaning U.S. Chamber of Commerce said last month that if Congress doesn't pass immigration reform the GOP "shouldn’t bother to run a candidate in 2016.” Does Cantor’s defeat mean that immigration reform is now doomed? How will this play out in the 2016 GOP presidential primaries? Should Bush, Christie, and Marco Rubio just go ahead and cancel their exploratory committees?

The cliché du jour after Cantor’s defeat is that immigration reform is dead in Congress for the remainder of Obama’s presidency. This is not news. Immigration reform was dead long before Tuesday night’s election results; there were no credible signs that the Senate bill would move forward in the House, no matter what John Boehner, the Chamber of Commerce, or Republican corporate donors had to say about it. Immigration reform — a.k.a. “amnesty” — is the third rail of Republican politics. Rubio touched it, and immediately saw his presidential prospects downsized. Jeb Bush’s heartfelt declaration that migrating to America illegally may be an “act of love” assures that he will be booed by GOP primary voters much as Cantor was. Rand Paul has slyly kept on the side of the base — on this issue as on so much else — by voting against the Senate immigration reform bill even while throwing a few moderate rhetorical bones (America should be “more welcoming” to immigrants) to the pro-reform fat-cat donors who might write checks to his presidential campaign. This is yet another reason why Paul remains the man to beat in the GOP presidential field at this early stage.

The roll-out of Hillary Clinton's new memoir, Hard Choices, has been a little rocky. Most pundits have reviewed the book as a bland and cautious political document (in contrast to former Secretary of Defense Bob Gates' hard-hitting Duty), and Clinton committed what is likely the first gaffe of her 2016 presidential campaign by telling ABC's Diane Sawyer that she and President Clinton were "not only dead broke, but in debt" when they left the White House in 2001. Do Clinton's book, its reception, and her "dead broke" comment tell us anything about the viability of her potential candidacy? And, in the age of the Internet and its exhaustive political coverage, do candidate memoirs still serve any purpose at all?

It may have taken a village of ghostwriters to write Clinton’s book, according to Paul Farhi’s account in the Washington Post. The point of the exercise in the digital age is not that anyone beyond the political press might actually crack it open but to reintroduce a product to the political marketplace with a huge marketing rollout. Mission accomplished.

As for Clinton’s poor-mouthing of her circumstances to explain $200,000 speaking fees, it was an indication that she may be as gaffe-prone in 2016 as she was in 2008, when she cast herself as a brave survivor of Bosnian sniper fire. But this time around it may not matter. It also may not matter that a Clinton presidential campaign will once again be bereft of a driving cause or coherent vision. Or that her tenure as Secretary of State was so bland that even a sympathetic appraisal of her record (by Nicholas Kristof in the Times last Sunday) had to pad her résumé by saluting her prowess in persuading American ambassadors to use Twitter.

But, as I say, none of this may matter in 2016. The Democratic candidate, whoever it is, will be running against a party whose positions on immigration, gay marriage, voting rights for minorities, and a woman’s rights to birth control and abortion continue to drive away virtually every constituency except old white men. Whatever the results in the low-turnout 2014 midterms — where the disproportionate power of the GOP base may soon elect a Mississippi Senator who calls Hispanic women “mamacitas” — this is not a party that can win a national election. It’s hard to see how any Hillary gaffe could screw this up in 2016. If for some reason she decides not to run, we will know that Karl Rove was right after all and she should have her head reexamined.