5 A phone is not a phone. Or rather, it is only accidentally called one. “The term ‘cell phone’ is itself misleading shorthand,” Roberts wrote in his opinion. “Many of these devices are in fact minicomputers that also happen to have the capacity to be used as a telephone. They could just as easily be called cameras, video players, rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps, or newspapers.” Roberts’s language here is very much like that of Judge Richard Leon, of the D.C. District Court, who noted, in an opinion last year, “Cell phones have also morphed into multi-purpose devices. They are now maps and music players. . . . They are cameras. . . . They are even lighters that people hold up at rock concerts.” One of the NSA’s sleights of hand, for which it had the stage help of the Foreign Intelligence Surveillance Court, was acting as though a police man standing next to a telephone technician in 1976 to find out what number a single, identifiable suspect was dialing on a single rotary phone was legally indistinguishable from the mass collection of records of the cell-phone calls of virtually all Americans — phones, records, nothing else to see. For Leon, the non-phoneness of modern phones rendered this absurd. Roberts’s opinion suggests that this shelving of Smith v. Maryland might find some sympathy on the Court.

A phone is also not a cigarette pack filled with heroin. In United States v. Robinson, a 1973 decision that also involved the police pulling over a car — a 1965 Cadillac, in this case — the court found that a police officer could search a soft cigarette pack he came across patting down a man named Willie Robinson Jr. The pack, which the officer opened because it felt strange, turned out to contain fourteen hard capsules of heroin. That falls in the category of searches that are reasonable, Justice William Rehnquist wrote in the majority opinion, to see what a person is carrying when he’s arrested, in case there’s, say, a weapon or something hazardous — and whatever was in that pack “he knew it was not cigarettes.” But when it comes to a suspect’s phone, Roberts wrote, the police know what it is and what they will find: data. Roberts explicitly rejects the idea that there are simple analogies between the search of physical objects (tangible things) and the data to which a phone is a portal. “Modern cell phones, as a category, implicate privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet, or a purse.”

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Similarly, Roberts points out that earlier rulings that let police search pockets were based on the assumption that a pocket couldn’t possibly hold very much. But, he writes,

If his pockets contain a cell phone, however, that is no longer true. Indeed, a cell phone search would typically expose to the government far more than the most exhaustive search of a house: A phone not only contains in digital form many sensitive records previously found in the home; it also contains a broad array of private information never found in a home in any form — unless the phone is.

New technology doesn’t mean that law enforcement gets a bonanza; it means that precedents need to be re-examined before they are uncritically applied — and that the NSA’s advocates will have some real work to do. As Roberts puts it, “Any extension of that reasoning to digital data has to rest on its own bottom.”

If it’s “My House,” it is not “just” metadata.  Since the Snowden revelations, we have been constantly reassured that much (though not all) of what the government collects without a warrant is “just” metadata — and what could be the harm in that? Metadata is supposedly distinguishable from content — it is information about a communication, the labels affixed to it, the addresses and the contacts, the times and the dates, and perhaps the locations. The reply is that an enormous amount can be learned from putting pieces of metadata together, and an awareness of that is present in Riley v. California and its companion case, United States v. Wurie. After the police took Brima Wurie’s phone, they saw calls from a number that came up as “My House”; that was used to connect him to evidence found at the address associated with the number. Police looking at Riley’s phone saw that some names on his contact list were designated “CK,” which they took to be shorthand for “Crip killer,” and part of their evidence for his affiliation with the Bloods gang. (Another piece of evidence was a photo on his cell phone of Riley with yet another car, a red Oldsmobile — the Bloods’ color — that had been at the scene of a gang shooting.) “We also reject the United States’ final suggestion that officers should always be able to search a phone’s call log, as they did in Wurie’s case,” Roberts wrote, noting that “the Government relies on Smith v. Maryland”:

The Court in that case, however, concluded that the use of a pen register was not a “search” at all under the Fourth Amendment. See id., at 745–746. There is no dispute here that the officers engaged in a search of Wurie’s cell phone. Moreover, call logs typically contain more than just phone numbers; they include any identifying information that an individual might add, such as the label “my house” in Wurie’s case.

10 Judges really need to know the technology when evaluating the government’s claims. But, the government said, we can’t wait to get a warrant; criminals will have their data remotely erased by their confederates; they will spring geofencing traps that will wipe the phones clean; there might be only moments before the phone locks; the evidence will be out of our reach forever before we can reach a judge. This all sounds very alarming — geofencing! — but, luckily, someone told the Justices that you can deal with a lot of the issues with simple measures, like removing batteries, using the window before a phone is locked to change the locking settings, or just putting the thing in what are called Faraday bags: “They are essentially sandwich bags made of aluminum foil: cheap, lightweight, and easy to use.” Technical awareness and skepticism of government claims about ticking time bombs: these are two easy-to-use items that will be helpful to the Court in the coming NSA cases.