Captain America, step aside: Justices are on the case

Supreme Court justice Antonin Scalia, defender of the Fourth Amendment.
associated press/Disney/photo illustration/globe staff
Supreme Court justice Antonin Scalia, defender of the Fourth Amendment.

The United States Supreme Court last week heard oral arguments over whether police should get warrants to search people’s smartphones. A number of justices were openly skeptical when the government claimed none were needed. Perhaps they’d all just seen the latest release of Captain America.

Popular media reflects and informs our lives, telling us about our fears and aspirations. That’s true even of entertainments that seem entirely escapist, including those based on Marvel comic books. The movie isn’t high art — too many 3D fights, shootings, and explosions for it to be that — but it deals with a theme of much relevance today: the conflict between security and freedom.

In the film, a secretive organization with a massive surveillance operation plans to send aloft a trio of really big drones, armed to the teeth and ready to kill about 20 million potential troublemakers. Many on-screen seem to think this sensible. After all, what’s 20 million so the rest of humanity can live in peace?


Tracing his origins back to World War II and steeped in that era’s values of liberty and privacy, Captain America disagrees. He persuades a few other brave souls to help him thwart the scheme and the parallels to current events are obvious. There’s even a Julian Assange-like moment where one of the superheroes uploads the organization’s secrets to the Internet, available for all to see. (There are differences too, of course; the Assange character on screen happens to be played by the far more fetching Scarlett Johansson.) By the end, and after enough property damage to make an insurance executive cry, the superheroes have saved the day.

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In the real world, who are our superheroes? People such as Assange or Edward Snowden seem candidates but actually are more akin to prophets, warning of misfortune but without the authority to stop it. Our elected officials? Some perhaps, but not those now in power. Indeed, it is the Obama administration — the same one that has so greatly stepped up the use of drones — that supports searching smartphones without warrants. We’re left with an improbable bunch: the nine justices of the Supreme Court.

On the plus side, they do wear superhero-style costumes, albeit flowing black robes that probably would be a hindrance during the acrobatics moviemakers now pass off as fighting. On the negative side, judges are a conservative lot. The worries about an activist judiciary notwithstanding, they tend to defer to the other branches of government.

Still, there’s some hope they may be up to the task. Last week’s session dealt with two similar cases, one out of California and the other from Boston. In both, police had seized a suspect’s cellphone during an arrest and then, without a warrant, went through it, pulling out information that was later used for successful convictions.

The Fourth Amendment to the Constitution prohibits “unreasonable searches and seizures” absent probable cause and a warrant, but the word “unreasonable” introduces complications. Right now, for example, it’s deemed reasonable that arresting cops can look through your wallet without a warrant. Law enforcement argues a smartphone is no different.


But it truly is different, a point a number of Supreme Court justices seemed to get. “People carry their entire lives on cellphones,” more left-wing Justice Elena Kagan observed. Centrist Anthony Kennedy warned that “we are living in a new world.” And from the right, Antonin Scalia thought it “absurd” that police could access so much information about a person’s life — bank records, diaries, tax returns, health conditions — after an arrest for even a minor offense such as not wearing a seatbelt.

Oral arguments aren’t decisions, and we won’t know the outcome of the cases for a couple of months. It seems unlikely, however, that the justices will buy wholeheartedly into the government’s position. The court may simply require warrants for all smartphone searches or perhaps will seek a middle ground, such as allowing something in exigent circumstances but nothing too intrusive.

Either way, it’ll be the justices drawing a line the rest of government would rather not see. It’s a disturbing truth, made in Captain America but also on display in these cases: Those in power resist any limits on their power. But absent those limits, the nightmare scenarios of even big-screen hits loom uncomfortably close.

Tom Keane can be reached at tomkeane@ tomkeane.com