by Benjamin Wittes and Jane Chong, The Brookings Institution
In June 2014, the Supreme Court handed down its decision in Riley v. California, in which the justices unanimously ruled that police officers may not, without a warrant, search the data on a cell phone seized during an arrest. Writing for eight justices, Chief Justice John Roberts declared that “modern cell phones . . . 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.”1
This may be the first time the Supreme Court has explicitly contemplated the cyborg in case law—admittedly as a kind of metaphor. But the idea that the law will have to accommodate the integration of technology into the human being has actually been kicking around for a while.
Speaking at the Brookings Institution in 2011 at an event on the future of the Constitution in the face of technological change, Columbia Law Professor Tim Wu mused that “we’re talking about something different than we realize.” Because our cell phones are not attached to us, not embedded in us, Wu argued, we are missing the magnitude of the questions we contemplate as we make law and policy regulating human interactions with these ubiquitous machines that mediate so much of our lives. We are, in fact, he argued, reaching “the very beginnings of [a] sort of understanding [of] cyborg law, that is to say the law of augmented humans.” As Wu explained,
[I]n all these science fiction stories, there’s always this thing that bolts into somebody’s head or you become half robot or you have a really strong arm that can throw boulders or something. But what is the difference between that and having a phone with you—sorry, a computer with you—all the time that is tracking where you are, which you’re using for storing all of your personal information, your memories, your friends, your communications, that knows where you are…… Read the entire story.