Nedlin: Cellphones — weapons of mass distraction?
Guest Commentary
Last month, the U.S. Supreme Court held that cellular phones shall not be searched upon the arrest of an individual unless law enforcement possesses a warrant.
The Fourth Amendment is the cornerstone of the U.S. Constitution that protects us from unreasonable searches and seizures so we can be secure of our persons, houses and papers. Of course, this only protects us from governmental intrusion or action of those directed by the state to act on their behalf, not your average citizen. Needless to say, when the cellphone is mentioned along with Fourth Amendment constitutional protections, this cellphone craze just might catch on.
The point of this article is not to get into the legal principles or dissect and explain the nuances and historical cases that led to this decision but rather to illustrate the importance of the phone in our culture and society today. It was inevitable that this type of case would arise, being how omnipresent phones are nowadays and how phones have become such an integral part of every facet of our life. If you were to ask most people what items they make sure to leave the house with, undoubtedly their phones would rank right up there with their wallets and keys.
Showing a sense of humor in the court’s decision, Chief Justice John Roberts stated, “Modern cellphones … are now such a pervasive and insistent part of our daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy.”
The cellphone is our computer, video camera, photo machine, diary, calendar, newspaper, filing cabinet, research assistant and more. Our lives are kept on our cellphones. The cellphone is the window to the core being of their owner, exposing the good, bad and the deviant. We have code locks and fingerprint scanners to protect our phones from the nosy and voyeuristic peeking inside our world. There is now an app being designed that will be able to detect someone’s password used to access their device, which uses a custom-coded video-recognition algorithm that tracks the shadows from finger taps and can spot the codes. By using a video wearable, such as Google Glass or a smartwatch, the codes are readable up to 10 feet away.
Would this be considered a theft, trespassing or invasion of privacy? What would be the possible legal implications to the user and the designer of the app? What other purpose is there for such an app other than to steal a passcode and gain access to personal information all held on a cellphone or tablet? The phone is the proverbial sword in that he who holds the phone shall have the power.
However, I often ask the question of whether the cellphone is good for our culture. The cellphone has impersonalized society. People do not know how to be alone; there is the need, the addiction, for constant stimulation and communication. Face-to-face conversation has become a lost art. The “selfie” has become the calling card of the “look at me” generation. Texts replace thoughtful conversation and allow for dialogue of courage via separation of space and time. Texts allow for things to be said that would never be done in a face-to-face situation. Is that good? Does it allow one to express words more freely without filter, which at a later time is deeply regrettable?
The cellphone has become the vessel for our psychological ID, without the protection of a superego, where we can fulfill fantasies, send photos one would never hand to someone in person, say things with courage and bravado and at the same time keep a calendar of when to pick up the kids or reminders of the banalities of everyday life. Our phones bring forth the image of the devil siting on one shoulder and the angel sitting on the other: both diametrically opposed to their purpose in life but both coveted for the pleasure they bring.
The cellphone is no longer really just a phone. That is not its primary function. The main selling point is the size of the screen, the amount of memory, the speed of processing and all the other capabilities that have absolutely nothing to do with making a phone call. It is not unlike cars. They all get you to the same destination; some just do it in a faster and more comfortable way. However, the phone has allowed a vast range of people, who are not your Land Rover- and Porsche-purchasing crowd, the ability to have the same phone as the 1 percent counterparts. Your average billionaire cannot get any better of a phone than your average ski-lift operator just by paying more. The phone is no longer the status symbol of the Gordon Geckko ’80s but rather the mandatory and obligatory apparatus to which the Supreme Court referred.
As I get older, I find that the relics and artifacts of my nostalgic youth, which at the time were an annoyance, now have a distant fondness. The payphone with the sliding door, being able to legitimately say there was no phone around and how special it was to speak on the phone with that special someone. The time when the phone was just that — a phone!
Richard Nedlin is a former prosecutor in Aspen and now practices criminal defense. He can be contacted at 970-309-8197 and richard@nedinlaw.com.
