The right to privacy

The Supreme Court of the United States ended its current term with a flurry of headline-grabbing decisions concerning free speech and the free exercise of religion, two of the five pillars of the First Amendment.

Political reporter Dmitriy Shapiro writes about the Hobby Lobby decision on the front page this week, a case concerning a closely held business’ right to refuse to provide contraception coverage to its employees in contravention of the Affordable Care Act’s mandate. Jewish groups wasted no time in responding to the court’s ruling on Monday, with responses ranging from “applause” to “horror.” Likewise, SCOTUS’ decision striking down no-protest buffer zones near abortion clinics prompted strong reactions from Jewish organizations.

Amid the sound and fury of these two opinions, it was possible to lose sight of a third decision with profound implications for American life. Riley v. California concerned the arrest of David Riley, who was pulled over in California in 2009 for displaying an expired registration sticker on his car. The police found loaded guns in the car, and, on examining Riley’s smartphone, found information associating him with a known gang. After conducting a second, more thorough search of Riley’s phone, without obtaining a warrant, police found messages linking the defendant to a shooting. He was convicted. The lower courts held that neither search of his device required a warrant.

As correctly noted by The New York Times, American courts have long
permitted warrantless searches at the time of arrests, justifying them on the basis of “exigent circumstances” such as the safety of the police officer and the need to prevent the imminent destruction of evidence.

Chief Justice Roberts, writing for a unanimous court, argued that neither justification could be applied to cellphones, which are not likely to endanger officers performing an arrest. Moreover, “[m]odern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans ‘the privacies of life.’ The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought.”

Therefore, the court ruled, police must obtain a warrant to search a suspect’s cellphone incident to an arrest.

The Riley case, seen in connection with the court’s unanimously decided opinion in U.S. v. Jones back in 2012, gives me hope both about the court’s (average age = 68) ability to apply the law to an increasingly high-tech society and about privacy rights in the digital age. In the Jones case, the court held that the attachment of a Global-Positioning System (GPS) tracking device to a person’s car, and subsequent use of that device to track his movements on public streets, involves a defendant’s constitutional right to be free from “unreasonable searches and seizures.”

Watching this country’s highest court stand up for privacy, what Justice Brandeis famously called the “right to be let alone,” makes me feel a particular pride about how Jewish law has long cherished this principle. The Talmud explains that the famous phrase “how goodly are your tents, Jacob; your dwellings, Israel” refers to their placement such that the openings did not face directly onto each other. Thus, Balaam, the spy sent to curse the Israelites, concluded to his king that the Jewish people were worthy of divine praise as they valued privacy.

Additionally, Rabbi Akiva taught that one should not enter another’s home without knocking – not even his own home – “for perhaps they are engaged in a private matter” inside.

According to one possible interpretation of the Gemara, the bells worn by the kohen gadol on his clothing also served to protect personal privacy. No one would be caught unawares by the approaching high priest, his bells loudly ringing.

Our mission as Jews is to act as a “light unto the nations.” With respect to personal privacy, have we not always done so?

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