The recent unanimous US Supreme Court decision, Riley v California, ruled that police need a warrant to search the cell phones of those they arrest. At issue was whether or not searches of the cell phone of an arrested person was a search incident to the arrest. Such searches are allowable because they can find objects harmful to the safety of the arresting officer, and prevent the destruction of evidence. The Court found that neither concern applied to information accessible by cell phones and that police should obtain warrants to authorize such searches.
This is of course an important finding, but my purpose here is to look at some of the ideas about communication technology embedded in the decision. The most obvious example and widely quoted is the following.
These cases require us to decide how the search incident to arrest doctrine applies to modern cell phones, which are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy.
While undoubtedly an attempt at humor, the “visitor from Mars” mistaking a cell phone for a body part also introduces the concept of the cyborg, the hybrid of human and machine. Is it too much to speculate that our Supreme Court Justices are Anxious Cyborgs too?
Cell phones differ in both a quantitative and a qualitative sense from other objects that might be kept on an arrestee’s person. The term “cell phone” is itself misleading shorthand; … One of the most notable distinguishing features of modern cell phones is their immense storage capacity. Before cell phones, a search of a person was limited by physical realities and tended as a general matter to constitute only a narrow intrusion on privacy.
I read “physical realities” here as shorthand as “non-digitally coded” realities. The decision goes onto to discuss the file cabinets etc that one would have to cart around to have at immediate disposal the information accessible with a cell phone.
Finally, there is an element of pervasiveness that characterizes cell phones but not physical records. Prior to the digital age, people did not typically carry a cache of sensitive personal information with them as they went about their day. Now it is the person who is not carrying a cellphone, with all that it contains, who is the exception. According to one poll, nearly three-quarters of smart phone users report being within five feet of their phones most of the time, with 12% admitting that they even use their phones in the shower.
I find identifying the pervasiveness and intimacy of cell phone use especially significant. It may begin to begin to recognize “cyborg” as a legal meaning of “person”.
Alexis Dyschkant writes about the legal importance of establishing the boundary of a person when determining if one has been wrongfully contacted.
Historically, “one’s person” has been limited to “one’s natural body” and some, but not all, artificial attachments to one’s natural body. The cyborg, a creature composed of artificial and natural parts, challenges this conception of a “person” because it tests the distinction between the natural body and an artificial part. Artificial objects, such as prosthetics, are so closely attached to bodies as to be considered a part of one’s person. However, claiming that personhood extends to things attached to our natural bodies oversimplifies the complicated interrelation between natural objects and artificial objects in the cyborg. If our person is no longer limited to our natural body, then we must understand personhood in a way that includes the cyborg. I argue that the composition of a body does not determine the composition of a person. One’s person consists to the extent of one’s agency. Cyborgs: Natural Bodies, Unnatural Parts, and the Legal Person
I doubt the Justices intended Riley to redefine the boundaries of a person as the boundaries of one’s agency. However, their arguments based on pervasiveness and intimacy do, I argue, move in that direction.
In a Buddhist context, I have argued in the past that many people experience their communication devices as a part of the illusion of an inherently existing self. There I suggested extending traditional mediations on establishing the boundaries of this illusion to include cell phones for example.
For the cyborg, this meditation could be expanded to include the artifacts of technology that she has aggregated into his experience of self. For instance, many people might experience the theft or malicious destruction of their cell phone as an assault. Some may relate to the field of information their communication technology produces as a part of their inherently existing self. The Negated Cyborg
Dyschkant echoes and extends this meditation, creating a vision of personhood eventually eliminating the idea of mediation and consisting entirely of agency.
What the cyborg shows us is that the body can be composed of any kind of part but the person is necessarily the agent which controls, benefits from, and depends upon these parts. Human tissue, animal tissue, or mechanical “tissue” all allow a person to exercise their agency and interact with the world. The type of body which a person controls need not be relevant. Hence, determining when one has made contact with “the person of another” does not necessarily depend on the naturalness or composition of one’s body, but on the relationship between the object contacted and the person’s agency. We can imagine a technologically advanced future in which people retain control over parts detached entirely from their body or in which one’s person is dispersed across great spaces.
Perhaps at some point the concept of a legal person begins to break down. Perhaps then the Buddhist idea of non-self, of the negation of an inherently existing self, becomes codified into law.