fingerprints or blood samples. Such an
approach ignores the cognitive aspect
of the smartphone, and leaves the law
in clear tension with technology and
There is room between these two
extremes, room that might include
special warrants for smartphone data
that require a showing of probable
cause that a specific crime within a
predefined class has been committed, and that specifies the information to which law enforcement is entitled. The “super warrants” required
for wiretaps have similar requirements, though wiretaps provide less
information than is commonly stored
in a smartphone.
All law involves striking balances.
Just as our right to free speech does
not extend to falsely shouting “fire” in
a crowded theatre, so law enforcement
may not enjoy the benefits of an illegal
search. So it should be here. Smartphones have become part and parcel
of our everyday lives and an extension
of our thinking selves. We should be
able to enjoy this technology with at
least some recognition that the contents of our minds may be found outside of our physical selves.
1. Barr, N. et al. The brain in your pocket: Evidence that
smartphones are used to supplant thinking. Computers
in Human Behavior 48 (July 2015), 473–480.
2. Brooks, R. Intelligence without representation.
Artificial Intelligence 47, 1–3 (Jan. 1991), 139–159.
3. Gibson, J. Ecological Approach to Visual Perception.
Houghton Mifflin, 1979.
4. James, W. Does ‘consciousness’ exist? Journal of
Philosophy, Psychology, and Scientific Methods 1,
5. Käufer, S. and Chemero, A. Phenomenology: An
Introduction. Polity Press, Cambridge, 2015.
6. Merleau-Ponty, M. Phenomenology of Perception.
C. Smith (trans.). Routledge, New York and London.
Originally published in French as Phénoménologie de
la Perception (1962/1945).
7. Suchman, L. Plans and Situated Actions: The Problem
of Human-Machine Communication (Learning in Doing:
Social, Cognitive and Computational Perspectives).
Cambridge University Press, 1987.
8. Wicker, S.B. Cellular Convergence and the Death of
Privacy. Oxford University Press, 2013.
9. Wu, F. No easy answers in the fight over iPhone
decryption. Commun. ACM 59, 9 (Sept. 2016), 20–22.
Stephen Wicker ( email@example.com) is a professor
of Electrical and Computer Engineering at Cornell
University and a Fellow of the IEEE.
The author gratefully acknowledges the comments of the
reviewers—they have made this a much better Viewpoint.
The author also gratefully acknowledges the comments,
editing, and general support of Sarah Wicker.
This work was funded, in part, by the NSF TRUST Science
and Technology Center.
Copyright held by author.
documents held by a third party, “no
constitutional rights are touched. The
question is not of testimony, but of surrender.” In his dissent, Justice Brennan lamented a lost right and, perhaps
unknowingly, summarized a great deal
of research in a variety of fields: “An
individual’s books and papers are generally little more than an extension of
his person. They reveal no less than he
could reveal upon being questioned
directly.”—Justice Brennan, Fisher v.
United States (1976)
Protecting the User
We have seen that for at least 100
years, British and American law held
that personal papers were not subject
to search and seizure. To this day Fifth
Amendment law forbids the compelled production of the contents of
a defendant’s mind. Recent research
into extended cognition suggests
that the contents of our minds may
include data on our smartphones—
the modern analogue of personal
papers—and yet the law allows the
seizure of smartphones under a wide
variety of circumstances. There appears to be a contradiction: Is there a
technical or legal resolution?
The technical path seems clear. Just
as an 18th-century statesman might
choose to keep his personal papers in
a safe, smartphones can be adapted to
back up selected data to privately held
cryptographic vaults. The “private” element is important, as the third-party
doctrine maintains that a user has no
reasonable expectation of privacy in
anything given to a third party. Established in the 1976 case United States
v. Millerf and applied to telephony in
Smith v. Marylandg in 1979, the doctrine predates cellular technology
(1983), the World Wide Web (1990),
and commercial access to the Internet
(1995). Clearly the nature of the data
individuals provide to third parties has
changed radically since the Miller and
Smith cases were decided.
There has been some progress in
this area. In a concurring opinion
in U.S. v. Jonesh Justice Sotomayor
expressed concern regarding the
amount and revelatory nature of data
f United States v. Miller, 425 U. S. 435 (1976).
g Smith v. Maryland, 442 U. S. 735 (1979).
h United States v. Jones, 132 U.S. 945 (2012).
provided to third parties in the “
digital age”: “More fundamentally, it may
be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third
parties. E.g., Smith, 442 U. S., at 742;
United States v. Miller, 425 U. S. 435,
443 (1976). This approach is ill-suited
to the digital age, in which people reveal a great deal of information about
themselves to third parties in the
course of carrying out mundane tasks.
People disclose the phone numbers
that they dial or text to their cellular
providers; the URLs that they visit and
the email addresses with which they
correspond to their Internet service
providers; and the books, groceries,
and medications they purchase to online retailers.”—Justice Sotomayor,
United States v. Jones
In Carpenter v. U.S. the question of
whether cellular location data should
be made available to law enforcement
without a warrant is now squarely before the U.S. Supreme Court. The Court
has an opportunity to recognize the
unique nature of cellular handsets and
to provide at least of modicum of protection to the user.
From this author’s lay perspective,
it would seem there are further legal
alternatives. At one extreme courts
may grant the individual immunity
from prosecution based solely on any
information found on his or her smartphone. My friends who are prosecutors
may howl in rage, but note that this
extreme step still allows for the collection of data that may be used to track
down co-conspirators. At the other extreme, we may continue to treat smartphones as we would any other piece
of personal physical evidence, such as
part and parcel
of our everyday lives
and an extension
of our thinking selves.