The Founding Fathers would be gobsmacked by an iPhone (although I bet Ben Franklin would catch on quickly). Yet if we asked them what branch of government should take the lead in adapting policy to a revolution in technology, they would say that’s a job for Congress.
Alas, I reckon they would be gobsmacked by today’s Congress, too. The august creation of Article I of the Constitution can’t walk and chew gum at the same time. Often, Congress can’t even walk. Gridlock in Congress stalls all causes: the bitterly divisive ones and the vital nonpartisan ones, too. The mobile digital age presents pressing issues, from privacy to the price of broadband. But Congress does, basically, diddly.
So the need for action falls to the executive branch and the courts — both of them problematic.
Relying on executive-branch regulators can result in radically shifting rules of the road. The Federal Communications Commission is a good example. Under Trump-appointed Chairman Ajit Pai, the FCC is preparing to reverse existing policy on "net neutrality," which requires that broadband providers treat all data equally. A change of presidents produces a screeching U-turn.
As for the courts, their limitations will be on display Wednesday in Washington, when the Supreme Court hears arguments over cellphone privacy. You might not realize that your cellular provider keeps track of your travels even when you have your GPS switched off. Each call, text, email and alert that enters or leaves your phone must pass through a nearby antenna.
In the case before the court, Timothy Carpenter's cellular provider supplied investigators a record of his smartphone's whereabouts. The pings placed Carpenter in the vicinity of several armed robberies in Ohio and Michigan. Now behind bars, he is asking the justices to find this a violation of his Fourth Amendment right to be safe from warrantless searches of his private domain.
Lower courts ruled that pre-iPhone case law was adequate to uphold Carpenter’s conviction. Under existing law, if a person passes information through another entity — a “third party” such as a phone company or shipping firm — the fact of the transaction is not private. If you send a letter, for instance, the writing on the outside of the envelope can be read. If you dial a phone number, the fact of the call (though not its content) is information owned by the phone company. And the carrier can share that fact with police.
Carpenter’s appeal is supported by big tech firms, leading civil liberties groups and digital privacy advocates. They argue that the transformative capabilities of the smartphone demand new protections against search and seizure of our personal digital property. If our entire lives — not just conversations but also shopping, studying, dating, navigating, playing, dining and documenting our experiences — take place with and through these devices, should all of it be public? Yet we have no choice but to use these increasingly indispensable tools.
Justice Sonia Sotomayor saw this issue coming. Writing in 2012, she found existing law "ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks."
No doubt other justices share this insight. Judges are human, after all, and few humans with smartphones haven’t fretted over the breadth and depth of the data collected by our digital overlords. And the problem doesn’t stop with collection. The capacity to store nearly infinite amounts of data assures that our virtual trails will never go cold.
The need for new privacy protections seems clear. But in such an intricate web of issues, the courts aren’t well suited to making policy. Their mandate is to decide the discrete legal questions presented one case at a time. A fully formed body of law from the bench may require decades of maturation through a series of cases.
Which brings us back to Congress — and, more hopefully, to state legislatures. The legislative branch is best equipped to define big issues, gather research, hold hearings, weigh competing interests and draft comprehensive reforms. Writing as a friend of the court in the Carpenter case, George Washington University law professor Orin Kerr, an authority on the Fourth Amendment and writer for the Volokh Conspiracy blog hosted by The Post, has urged the justices to restrain themselves. "The Court should continue to allow legislatures to debate and decide how much protection cell-site records should receive," Kerr asserted, pointing out that California recently passed very strict new privacy laws.
Partisan game-playing and mutual suspicion in Congress come at a high price. Pressing decisions that ought to be made by elected representatives in open deliberation are instead pushed into the cloistered chambers of the Supreme Court. Lawmakers claim to resent judges who legislate from the bench — but they’re making it a last resort.
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