Tech at Night: I agree with Alito, not Roberts, in the phone search case, Riley v. California

Tech at Night

I admit, when I see too much libertarian cheering about something, I look for the catch. So I had to take a closer look when I saw people disagree with aligned with people I sometimes agree with and sometimes disagree with, all cheering the Supreme Court’s decision in Riley v. California, which asserted that in a police stop, a warrant is required by police to search the data on the phone.

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I have to say I agree with Justice Alito’s concurrence, more than I do with the opinion of the court by the Chief Justice. He points out that searching arrested persons predates the fourth amendment, was not altered by the fourth amendment, and is all about gathering evidence, not securing cops. So the court was right, but for the wrong reason.

Alito points out that the court’s reasoning makes no sense, treating written materials differently from digital materials. It’s not a great situation, it’s not entirely rational, but the technical situation creates an anomaly that is difficult to work around.

I have to conclude here that much of the cheering of the decision isn’t process-based, or law-based, but rather simply results-based. To some, it doesn’t matter how the court came to the decision that such searches are unconstitutional, so long as it ruled according to policy wishes of those cheering.

I ultimately agree with Sam Alito’s conclusion that this is a question that needs to be solves the right way, through legislation that sets the policy according to our collective wishes:

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In light of these developments, it would be very unfor- tunate if privacy protection in the 21st century were left primarily to the federal courts using the blunt instrument of the Fourth Amendment. Legislatures, elected by the people, are in a better position than we are to assess and respond to the changes that have already occurred and those that almost certainly will take place in the future.


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