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Cell phone data: Not private?

Opening a new Term on Monday, the Supreme Court once again indicated that it is reluctant to get deeply involved in exploring new issues about privacy in the Digital Age.  Without comment, it turned aside an appeal by the state of Ohio, asking the Justices to give police wider authority to check out the contents of a private cell phone they obtained during an arrest.  The case was one of nearly 2,000 that the Court refused to hear in its new Term.  It granted no new cases beyond the 14 it added to its decision docket last Tuesday.

The Court has said explictly that it does not yet have a broad enough understanding of new electronic technology to make major pronouncements on the constitutional issues that are arising around it.  Last Term, for example, it moved cautiously in evaluating privacy on pagers that government agencies provide to their employees.  On Monday, it simply left another new issue to develop in the lower courts when it denied review in Ohio v. Smith (09-1377).

Ohio’s Supreme Court had ruled that a cell phone, obtained by police during an arrest of a suspected drug dealer, was not the kind of “container” that police may search without a warrant in order to protect their safety, or protect evidence from being destroyed, as they make an arrest.  The Fourth Amendment, the state court decided, requires police to obtain a warrant before they may examine the electronic data that is stored on a cell phone.

The case involved an arrest in 2007 in Beavercreek, Ohio, of a man identified by one of his alleged customers as a drug dealer.  A search of the individual yielded his cell phone.  When police examined it later, they found it had the telephone listings of his customers.  The contents were used against the dealer, Antwaun Smith, during his trial, over his lawyer’s objection.  The state supreme court ruled that the evidence had been obtained in violation of the Fourth Amendment.

In its appeal, the state of Ohio contended that lower courts are split on the scope of police authority to search the contents of electronic devices they turn up during lawful arrests.   As usual, the Supreme Court gave no reason for turning aside the state’s appeal.

The Court also demonstrated anew on Monday that it will be, at most, very selective about when it will examine the federal government’s power to block lawsuits brought against it by invoking the so-called “state secrets” doctrine.  Although the Court last week had agreed to hear two consolidated cases that test the use of the “state secrets” doctrine in the narrow context of federal defense contracting, it has stayed away from cases in which that doctrine has been invoked by the government in the context of “war-on-terrorism” legal disputes.

It did so again, this time turning aside an appeal by 23 private lawyers — some in law firms, some in legal advocacy groups, some in law schools — who represent clients among the detainees at Guantanamo Bay, the U.S. Navy prison at a U.S. base on the island of Cuba.  They have been trying since early 2006 to obtain government records that, they believe, will show that the Bush Administration’s secret program of warrantless electronic eavesdropping spied on the lawyer-client communications of these attorneys and their detainee clients.  They had sued under the Freedom of Information Act, but the Second Circuit Court ruled that government intelligence agencies may refuse to admit or deny that they have records about intelligence gathering, thus blocking any demands for such records.  That is one version of the government’s power to protect what it considers to be secret files.  The case went to the Supreme Court as Wilner, et al., v. National Security Agency, et al. (09-1192).

Another action by the Court on Monday — involving a Guantanamo detainee –  occurred amid almost total secrecy.  In a brief order, the Court permitted the private attorneys for an Algerian detainee, Djamel Ameziane, to file a petition for review — but to do so under seal.  So, the questions that Ameziane’s attorneys are asking the Court to review are unknown.  Moreover, almost all of the proceedings in the D.C. Circuit Court as well as in U.S. District Court also occurred under seal.  News organizations have asked the Circuit Court to unseal at least some of the proceedings.  Last week, the Justice Department filed — again, under seal — a copy of the Circuit Court ruling, with what it considers to be sensitive information deleted from the opinion.  Thus, it seems likely that the “redacted” opinion will shortly be made public, perhaps clarifying the issue that the detainee’s lawyers are seeking to put before the Supreme Court.

Among the  significant cases that the Court refused to hear, these were the issues at stake:

** A plea, by a Mississippi member of the Ku Klux Klan convicted of a kidnapping of two black youths who later were drowned in 1964, to overturn his conviction because the government waited too long to prosecute him.  James Ford Seale, of Natchez, Miss., argued that the nearly 43-year delay before he was prosecuted exceeded the time limits for pursuing a federal kidnapping charge.  His appeal to the Supreme Court sought clarification of when the time ran out for the Justice Department to pursue old civil rights kidnapping cases that dated from the 1960s.  (Seale v. U.S., 09-11229).

** Whether it is unconstitutional for public school officials to ban the performance of religious-theme holiday music — including Christmas carols — at school concerts around holiday time.  The Third Circuit upheld such restrictions in the case of Stratechuk v. South Orange-Maplewood School Board (09-1184).

** A plea, by a man awaiting trial in a death penalty case in Georgia since 2006, for the Court to clarify the duty of states to provide funding for legal aid for individuals in capital cases, when the lack of funding forces long delays in getting a case to trial.  The case is Weis v. Georgia (09-10715).

Besides the many denials of review, the Court issued one summary action, ordering the Ninth Circuit Court to dismiss, as moot, a case that arose over the planned televising of the federal court trial of the constitutionality of Proposition 8 — California’s ban on same-sex marriage.  The dismissal wiped out a Circuit Court decision that would have allowed the TV broadcast of the trial to go forward.

The Supreme Court, however, blocked the televising on Jan. 13.  Although the proceedings were never broadcast on TV, a videotape was made of the trial, and the District judge has shared that with the two sides in the dispute.  The backers of Proposition 8 asked the Supreme Court to vacate the Ninth Circuit ruling, in an effort to make sure that the videotape of the trial would never be broadcast publicly.   The case was Hollingsworth, et al., v. Perry, et al. (09-1238).  As it reached the Supreme Court, the case had nothing to do with the constitutionality of Proposition 8 — an issue that is now under review in the Ninth Circuit, with a hearing set for December.