Legal Background

    
        In recent years there has been a worrisome trend in the legal system whereby 
modern technology’s capacity to invade individuals’ privacy has far outpaced judges’ 
ability to comprehend the true privacy claims at stake. A series of judicial opinions 
reflect this gap (such as People v. Diaz, United States v. Pineda Moreno, and United 
States v. Arnold) highlighting the myopia of modern justices, and their inability to think 
broadly about possible invasions of privacy. In particular, judges are 1) regurgitating the 
same parade of horribles surrounding possible privacy breaches and 2) generally 
uninformed about modern and emerging technology. For this reason, our project aims to 
enlighten judges and the broader public of these privacy dangers through education about 
the hypothetical ways in which one can inadvertently lose their essential right to privacy. 
Before pursuing these areas further, we begin by recapitulating the recent judicial 
opinions, whereby the same scenarios are discussed ad nauseam.  

        One key problem with current judicial opinions is that they frequently fail to 
grasp the full range of personal information that may be at risk for invasion from 
technological sources. If anything, they often appear to derive primarily from what the 
judge himself would find embarrassing. For instance, the marathon day of privacy 
invasions cited in People v. Weaver expresses concern that others might learn of one’s 
“trips to the psychiatrist, the plastic surgeon, the abortion clinic, the AIDS treatment 
center, the strip club, the criminal defense attorney, the by-the hour motel, the union 
meeting, the mosque, synagogue or church, the gay bar…;” yet, for many other 
individuals attendance at a gay bar may not feel private in the slightest, while other 
concerns not listed would (e.g. attendance at Alcoholics Anonymous, infidelity, etc.). 
That is not to say that these hypotheticals are superfluous or entirely unneeded. Rather, 
justices seem to understand that, “the whole reveals more—sometimes a great deal 
more—than does the sum of its parts” (US v. Maynard). While they understand the 
aggregated dangers surrounding the modern technological world, the federal judicial 
system often fails to recognize the power and scope of modern technology. 

        Additionally, throughout the entirety of these opinions, justices often fail to 
recognize the subjectivity of their accusations. Rather, they construct overarching claims 
about what one may find to be private. Devoid of any statistical evidence, these cases 
operate under the dictum that the right to privacy must be subjectively reasonable to an 
individual in a manner that society is objectively willing to accept. In utilizing this test, 
however, justices do not confirm that the matter at hand really encompasses data or 
information that society is objectively willing to protect as reasonable. In order to gauge 
what a small subset of society (i.e. Yale students) finds subjectively private, we have 
conducted a survey asking them how private they find a variety of everyday data and 
technologies. 

       Moreover, many judges lack a general understanding of modern day technological 
essentials. In several cases, legal opinions fail to recognize that innocuous forms of data 
collection (Internet browsing, cell phone location, etc.) often become harmful and 
invasive. As an example, U.S. Supreme Court Justice Antonin Scalia once stated at a 
conference, in response to concerns about data amalgamation on the Internet, “Every 
single datum about my life is private? That’s silly.” Yet, when subsequently presented 
with a dossier of findings about his life compiled by a Fordham Law School class, Scalia was forced to backtrack on his words, criticizing the “irresponsible” nature of the 
students’ (and their professor’s) actions.  

        Specific cases highlight this tendency as well. In US v. Arnold, the court rejected 
the notion that a computer is like a home, and therefore should be protected like one. 
With the ever-increasing capabilities of computers, we are not far from the day when 
individuals store more information on their hard drive than they have spread about the 
entirety of their home. It is dangerous for our judicial system to neglect the growing 
impact that computers, and other technologies have on modern culture, yet the courts 
seem to make this mistake often. In the California Supreme Court case People v. Diaz, 
the holding mistakes cell phones for everyday, commonplace items. Refusing to 
differentiate between cellular devices and “a pack of cigarettes,” the majority states, in 
2011 no less, that the powerful data storage capability of cell phones is irrelevant. During 
an era where smart phones are ubiquitous in American culture, the curmudgeons of our 
judicial system refuse to recognize the changing tide. 

        There are, however, several justices who do understand the technological 
implications on the legal world. Juxtaposing several dissenting and majority opinions 
within certain cases elucidates an interesting, and important trend – generally, the opinion 
with the greater understanding of the technology at hand favors a more expansive 
protection of privacy. That is to say, judges who understand that computers, cell phones, 
and GPS tracking devices can contain a comprehensive record of your whereabouts 
generally maintain a looser interpretation of the 4th Amendment. 

        In State v. Smith, the Ohio Supreme Court dealt with the same issue as in People v. 
Diaz. When asked whether cell phones should be differentiated from general containers
the majority reasoned, “Even the more basic models of modern cell phones are capable of 
storing a wealth of digitized information wholly unlike any physical object found within 
a closed container.” Recognizing the depth of cellular phone capabilities, the court used 
its technological knowledge to make an informed decision on the case. “[cell phones] 
have the ability to transmit large amounts of data in various forms, likening them to 
laptop computers, which are entitled to a higher expectation of privacy.”  The dissent on 
the other hand claimed, “It would be unworkable to devise a rule that required police to 
determine the particular cell phone’s storage capacity, and the concomitant risk that 
telephone numbers stored on the phone could be lost over time, before searching the 
phone’s address book or call list.” The judge/s issuing the dissent mistakenly believe that 
cell phones act only as a streamlined address book, refusing to accept the myriad 
capabilities that modern smart phones possess.  

        One can see the same phenomenon in US v. Pineda Moreno. In that case, the 
majority said that GPS tracking was permissible because Knotts, acted as precedent. In 
Knotts, the court ruled that beeper tracking was constitutionally acceptable. The Moreno 
court fails to recognize the difference between GPS and beeper tracking, thus issuing a 
controversial statement. The dissent, possessing a greater understanding of the GPS’ 
technological implications, posits hypotheticals to make clear why GPS tracking 
information should be protected. “Are Winston and Julia’s cell phones together near a 
hotel a bit too often? Was Syme’s OnStar near an STD clinic? Were Jones, Aaronson and 
Rutherford at that protest outside the White House?” Both State v. Smith and United 
States v. Pineda Moreno highlight the judicial pattern whereby judges with a greater 
understanding of technology are more willing to protect citizens under the 4th 
Amendment. 

        Such neglect by less informed judges stems from a general naïveté with regard to 
technology – something that our legal education system must remedy. If our judiciary is 
going to construct a socially acceptable interpretation of technology law, then the drafters 
of said policy should know a thing or two about technology. Whether that be through 
mandatory technology classes in law school, a series of memorandums to the nation’s 
judicial officers, or a more instructive communication between clerks and justices, it is 
high time that the courts begin to recognize the nexus between the legal world and the 
technological one.