Sunday, May 1, 2011

The Atlantic Asks: Is it the Size of the Device, or How You Use It?

I apologize for the bad taste of the title of this post.  But I couldn't resist.

The Atlantic published a nice article about cell phone searches.  From a legal standpoint, no new ground is covered.

However, the author suggests a new philosophical approach to how we look at cell phones – whether as traditional containers or something different:

What's really at issue here is whether it's the size of the digital device that matters or the amount of information it contains. It's a classic case where if you think about it in terms of the atoms -- the stuff -- you get one answer but if you think about it in terms of bits you get another. The phone is small, so it is easy to have it "immediately associated" with you. But the information it contains is vast and wide-reaching and valuable.

The battle points out just how tuned our laws are to our bodies. Remember the wingspan rule or the plain view doctrine, which presupposes a certain resolution for your eyes? These things only make sense in the world of atoms. And we don't yet have new rules for that other, constantly growing world of bits.

The best way to look at this, I suggest, is to acknowledge that courts are struggling with when the difference in degree becomes a difference in kind.  The key question is whether the aggregation of personal data found on modern cell phones makes them somehow distinct from traditional boxes of papers or file drawers.

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