Editorial: Court rulings advance personal privacy and liberty

Published Jun 27, 2014 at 12:01AM

Personal privacy and liberty triumphed in two courts this week, with decisions on cellphone searches and no-fly lists.

Wednesday’s unanimous U.S. Supreme Court decision banning warrantless searches of cellphones recognizes that the devices are not just objects, they are windows into our personal lives. Chief Justice John Roberts’ decision noted that a search of a cellphone can be more intrusive than the search of a home. “Today,” he wrote, “it is no exaggeration to say that many of the more than 90 percent of American adults who own a cellphone keep on their person a digital record of nearly every aspect of their lives — from the mundane to the intimate.”

The court allowed an exception in cases of extreme emergency such as locating a missing child or preventing a terrorist attack, but still required a judge’s approval after the fact. In the balance of personal privacy and law-enforcement needs, the ruling moved the needle in favor of the individual.

The decision could have far wider implications in our digital world, according to Orin Kerr, a George Washington University Law School research professor. Writing on SCOTUSblog, Kerr said the ruling makes clear that cellphones are really microcomputers, suggesting a “major endorsement of treating computer searches differently than physical searches.” That could lead, he said, to different rules for physical evidence versus digital evidence.

On the other side of the country, U.S. District Court Judge Anna Brown ruled Tuesday in Portland that the government’s no-fly list procedures violate due process.

She said the government must give the 13 people who brought the suit unclassified summaries of why they were placed on the list, or give classified information to their lawyers who have appropriate security clearances. Without that information, the listed persons have no way to know what information to submit to show the listing is incorrect.

Brown asserted common sense by rejecting the government’s argument that not being able to fly is just an inconvenience. “Indeed,” she wrote, “for many, international travel is a necessary aspect of liberties sacred to members of a free society.”

Although the decision immediately affects just the 13 persons, lawyers expect it to have wide impact, likely leading to wholesale changes in the process of challenging the list. The New York Times reported that Attorney General Eric Holder said the government should focus on fixing the problems Brown identified while preserving national security.

In both cases, the court put the brakes on government excess, finding a better balance between the government need to protect us from danger, and our need to be protected from government.