The Dish

The Supreme Court heard arguments yesterday in two separate cases addressing whether the Fourth Amendment’s protection against unreasonable searches and seizures extends to the contents of your cell phone. Sarah Gray sums them up:

The two cases being heard are on opposite ends of the spectrum. The first is Riley v. California. In 2009, David L. Riley had an expired car registration, and was pulled over in San Diego. Police also found two loaded guns and text messages that associated him with a gang. A further search of the phone linked him to an attempted murder. He was convicted and received 15 years in prison. Both the guns and phone were found without a warrant; a California appeals court ruled that the search was like going through a person’s wallet or address book and did not require one.

The second case is United States v. Wurie. Brima Wurie was arrested in Boston in 2007 on drug and gun charges. Officers searched his flip-phone’s call log without a warrant. A Boston federal appeals court threw out the cellphone records as evidence. Judge Norman H. Stahl wrote, “Today, many Americans store their most personal ‘papers’ and ‘effects’ in electronic format on a cellphone, carried on the person.”

Dahlia explains the court’s dilemma:

The problem for the court today is that they don’t much like the prospect of allowing the cops to search jaywalkers’ cellphones for evidence of anything bad they’ve ever engaged in. Even Justice Scalia conceded that for someone arrested simply for driving without seat belts, “it seems absurd that they should be able to search that person’s iPhone.” But at the same time, the justices also don’t want to hamstring the police who claim that if they can’t search cellphones, they will be in danger, and major crimes will go unsolved.

Serwer was unimpressed with the court’s tech savvy:

“Could you have a rule that the police are entitled to search those apps that, in fact, don’t have an air of privacy about them?” Chief Justice John Roberts asked. “What about something like Facebook or a Twitter account? There’s no real, there’s no – any privacy interest in a Facebook account is at least diminished because the point is you want these things to be public and seen widely.”

Roberts seemed confused by the difference between being able to see a public status update or a tweet and having direct access to a password-protected social media account through a mobile device – perhaps Anthony Weiner could enlighten him.

Noah Feldman hopes the justices insist on warrants for cell phone searches but fears they will settle for something less:

The court’s conservatives seemed very interested in the rule proposed by the office of the solicitor general, which is that the police should be able to search a smartphone without a warrant in order to find evidence relevant to the crime for which a person is being arrested.

On the surface, the proposed rule has some mild appeal. It certainly responds to Justice Scalia’s concern that every arrestee for any crime, no matter how small, could find his or her entire life’s data reviewed and logged into a single government archive. The trick would be figuring out how to limit a data search to information related to the cause of arrest. … As Justice Elena Kagan put it, “It sounds good as a limiting principle, but it ends up you can imagine in every case that the police could really look at everything.”

But that, as Amy Howe explains, wasn’t the only middle-ground rule proposed yesterday:

DuMont and Justice Alito, for example, suggested that a warrant should not be required as long as police are only looking at information – like a photograph – that is analogous to something that police could have searched in the pre-digital era.  But Justice Kagan objected that such a rule would actually exclude very little, noting that almost everything on a cellphone “could be reduced to a piece of paper.”  And Justice Stephen Breyer similarly noted that there is very little data on cellphones that wouldn’t have an analog from the pre-digital era, telling DuMont that the real problem is the quantity of data found on modern cellphones, which far outweighs the quantity of papers and photos that most people would carry around with them. …

And Justice Anthony Kennedy proposed yet another possible middle ground:  whether police can search an arrestee’s cellphone without a warrant would depend on whether the crime for which the individual was arrested was a serious or non-serious offense.   Having made that suggestion, though, Kennedy himself immediately expressed doubt about whether the Court’s cases would support a distinction between serious and non-serious offenses.

Orin Kerr points out that creating such a middle-ground rule is easier said than done:

[T]he Justices still have significant work to do in crafting a new rule, and not a lot of time in which to do it. If you go with a bright-line rule, the opinion pretty much writes itself; the choice of the bright line rule makes the decision easy to craft. But the middle-ground approach involves lots of different possible variables, with hard choices to be made among which variables should matter and how. That makes it tricky to craft, especially in a tight time window. To make things harder, there aren’t many examples of middle-ground answers from the lower courts. The only middle-ground approach that I recall from the lower courts was Judge Posner’s opinion in Flores-Lopez, which wasn’t necessarily a successful effort.

Brianne Gorod expects Scalia to come down, as he has in other recent cases, on the side of strong Fourth Amendment protections:

There should be little doubt about what Scalia will say about these searches. He has become a regular champion of the Fourth Amendments protections against “unreasonable searches and seizures.” In Navarette v. California, Scalia disagreed with the court’s conclusion that the police could lawfully stop a car after a woman anonymously called 911 and reported that the car had driven her off the road. Scalia wrote that such stops were not the constitutional framers’ concept of a “people secure from unreasonable searches and seizures.”

And in Maryland v. King, a case decided last term, Scalia disagreed with the court’s conclusion that the police may lawfully take a cheek swab of someone’s DNA after he or she has been arrested for a serious offense. He expressed “doubt that the proud men who wrote the charter of our liberties would have been so eager to open their mouths for royal inspection.”

For Sullum, however, this is not a tough call:

The truth is that Court’s rules for arrest-related searches have been needlessly deferential for decades. Preserving evidence and protecting officers from hidden weapons were the two original justifications for making an exception to the warrant requirement. But neither of those goals requires reading detailed information about an arrestee, whether it is stored on a cellphone or in a notebook. Barring far-fetched emergencies, there is no legitimate reason why police, having secured such evidence, cannot go to the trouble of getting a court order authorizing them to examine it. That point is especially clear in the case of cellphones and other portable electronic devices, which routinely contain just the sort of private information the Framers meant to protect when they banned unreasonable searches of people’s “papers” and “effects.”

A reader remains unsatisfied with the Sovaldi discussion:

I can appreciate the gratitude you feel towards the pharmaceutical industry whose anti-retrovirals drugs saved your life. They saved my life too. However, the fact that the status quo has done great good does not mean that things could not be better.

Sure, research and development of drugs is expensive. But I would like to read your views on studies like this one suggesting that the pharmaceutical industry spends twice as much on marketing as it does on R&D. Also, I would like to see you grapple with the conflict between pharmaceutical companies’ responsibility to maximize shareholders’ profits, and the ethical responsibility to maximize human welfare. They are clearly often – many would argue always – in direct conflict.

Again, I appreciate the gratitude you feel towards the pharmaceutical companies. But I don’t think that gratitude requires an unconditional support of the status quo in the pharmaceutical industry. I would like to see you grapple more with the ethical conflicts and human costs involved.

My support of the drug companies’ innovation is not unconditional. In fact, it’s constantly derailed by some of the worst practices of those very drug companies. Over-aggressive and sneaky attempts to extend patents, heavy marketing of not-so-vital drugs, lobbying to ensure that the balance between the free market and the moral demands of healthcare is always tilted toward profits: I could go on. But my deeper point is a capitalist one: if the only incentive for curing people was human benevolence, I’d be dead and countless others would be suffering. A free market tries to harness human selfishness for the greater good. And maintaining that balance is what we need to do. Broad-brush condemnation of the private drug sector doesn’t help us with that balance. Another reader notes:

Here is an interesting look at the issue in Forbes. Basically, if every person suffering from Hep C in the US took this drug, Gilead would generate $227 billion in revenue. In comparison, the entire frigging drug industry in the US booked $260 billion in revenue last year. That right there is a sign that market forces have absolutely nothing to do with Gilead’s pricing. This is pure extortionary pricing. I completely understand that there are different aspects to consider for this one issue, but there is really no rational, defensible, quantitative way to justify the current price of Sovaldi … a price, by the way, that by itself will restrict access to this drug for many who need it.

But another defends Sovaldi:

I’ve been following this story on your site and around the web pretty closely, as I work for a consultancy that (in part) specializes in pharmaceutical price setting. We didn’t work on US launch pricing for Sovaldi, but the press reaction has stirred quite a bit of attention around our offices.

Our analysis shows that the price of Sovaldi should have actually been higher.

The drug sets a new standard for both efficacy and safety (and has a significantly shorter duration of treatment), and is potentially even better than the competitor drugs coming to market over the next few years. The crux of the problem is that Sovaldi is so effective and so tolerable that many more patients than expected want to initiate treatment immediately. For years, insurance payers have taken for granted that doctors “warehouse” patients who do not have HCV advanced enough to warrant treatment. Patients are streaming out of such “warehouse” queues, and that doesn’t even account for the >50 percent diagnosed population in the US.

So we see that the drug is clinically far superior to standard options that are priced at comparable or even higher levels, but as a result is having a huge impact on insurance risk pools. Is it really fair to tell a manufacturer that they shouldn’t price their breakthrough drugs at parity to inferior competitor drugs that have gone without a negative press reaction for years? The story here isn’t that manufacturers are gouging consumers for a life-saving product, but actually that our drug benefit insurance schemes are simply not equipped to give sick patients drugs that they need when a honest-to-goodness breakthrough comes out.

Another:

Thanks for defending my industry.  I admit I’m biased, and certainly my industry does some stuff that makes people unhappy.  That said, $84K to be CURED of Hep C is a bargain.  When I first saw the news I thought, well, $84K a year to stay alive is maybe a bit steep … but no, this is $84K to be CURED.  My industry doesn’t do a lot of curing.  This drug is a miracle, and those don’t come cheap.

Another looks at a different medication:

My 7-year-old daughter was diagnosed with asthma a few years ago and given a rescue inhaler. Recently the prescription ran out and we called to have it refilled. The pediatrician insisted on seeing her, then prescribed her another inhaler, a daily use corticosteroid – which costs twice as much as the original rescue inhaler.

Never having heard of this particular medication before (QVAR), I googled it and came across a Consumer Reports study noting that the drug is now 92 percent more expensive than it was in 2009, in part because of the FDA’s decision to ban CFCs – a ban which the pharmaceutical industry itself lobbied for.

I’m sorry. This absolutely qualifies as fleecing, as greed.

The NYT did a deep dive into the subject of asthma drug pricing as part of its “Paying Till It Hurts” series last October. Meanwhile, a reader raises the issue of waste:

I’m speaking as someone who worked for years in a firm that was hired by many large pharma companies to help make their internal processes both effective (i.e., defect-free, without rework) and efficient (i.e., not wasting physical, human, or financial resources).  Processes ranged from clinical trials, to marketing campaigns, to production of the active pharmaceutical ingredient.

You cannot begin to imagine the sheer amount of waste involved; it is truly, truly mind-boggling. For years, these firms resisted process improvement efforts (such as Lean and Six Sigma, popularized by Toyota and GE, respectively) in part because the FDA neither rewarded such efforts nor punished the lack of them, and in part because they did not see their activities as “processes” that could be tuned up. I remember first hearing about one firm’s method for analyzing adverse events from their products. So appalling was this description that when I got home, I checked to ensure that the meds I was taking for a chronic condition weren’t made by that company.

I agree that the cost of drugs needs to cover what it takes to bring them to market, and that not all research will result in a salable product. But consumers should not be paying for gross inefficiencies that are relatively easily fixed.

I’m not going to disagree with that. Lastly, a reader wants to clear up some confusion about the NIH:

I work in pharmaceuticals (specifically, early stage startup, not big pharma) and am very familiar with the relationship between academic-/NIH-funded research and industrial drug research and development. The NIH funds very basic research that allows us in industry to then discover and develop new drugs. There is no debate around this, and anyone in a pharma company will agree.

However, NIH funding, with rare exceptions, doesn’t even discover new drugs, let alone develop them. Typically, NIH funding will allow an academic researcher to identify a novel aspect of biology and associate it with a disease state. Pharma usually picks it up at this point by verifying the research, running chemical screens to identify potential drugs, and then modifying the potential drugs to the point where they are safe and efficacious. It is then that a drug will enter clinical trials. The entire process just to get to a clinical trial can take four to eight years and cost millions of dollars. The clinical trials are where the real money and time are spent, of course, but there is a substantial investment by a drug company prior to this that is easily overlooked.

I’m not defending drug pricing; I think we have a long way to go in terms of demonstrating value for money spent. But this is intertwined in healthcare costs itself and drug companies are responding to market pressures. I do however want to dispel the belief that the NIH funds academic research that discovers drugs, and then drug companies take it away and charge an arm and a leg. Drug companies assume the vast majority of the risk and the investment to both discover and develop new drugs.

Scott Clement unpacks yesterday’s WaPo/ABC poll, which included bad numbers for Democrats. What it may mean for turnout:

While nearly seven in 10 of all registered voters say they are “absolutely certain” to vote in November, several key Democratic constituencies are much less committed to voting. Barely half of voters ages 18 to 39 are certain about voting (53 percent) and 55 percent of non-whites describe themselves as certain to cast a ballot. By contrast, more than seven in 10 whites and voters older than 40 say they will definitely cast ballots — both groups that have favored Republicans in the past two elections.

The turnout gap is smaller among self-identified partisans, with Democrats six percentage points less apt than Republicans to be certain voters (72 percent vs. 78 percent). Closing that gap, however, could be difficult, given that Democrats are more than twice as apt to rate themselves “50-50” or less likely to vote; 15 percent of Democrats say this, compared with 5 percent of Republicans.

Zeke Miller uses another poll to read likely voter tea leaves:

Facing an uphill battle to hold the Senate, the Democratic Party may be in for a wakeup call from young voters, according to a new poll conducted by Harvard’s Institute of Politics. Just 23 percent of the key Democratic-leaning demographic of 18-29 year-olds say they will definitely vote in the midterms this fall. At this point in 2010, 31 percent said they would definitely go to the polls, but only 24 percent ultimately voted. Additionally, Republican-leaning 18-29 year olds are significantly more enthusiastic about voting this fall.

Boer Deng notes that young voters, “despite casting ballots in limited numbers, can make a difference in tight races”:

Tight races abound this year, especially in the Senate, where Democrats have more seats to lose. History says that the president’s party is set for a drubbing during a midterm year. So it is worrying for Democrats that fewer of their young supporters seem to care. In fact, they are disillusioned with politics all together. The Harvard poll found that trust in political institutions has fallen to a historic low of 31 percent. Young people, no matter their political philosophy, are cynical about American democracy today: 62 percent think elected officials enter politics for a “selfish reason,” and few would run for office themselves. They can be hardly expected to canvass for votes, if that’s the case.

Sargent adds his two cents:

In short, this is more evidence the electorate is likely to tilt older, whiter, redder, and more male. Yet at the same time, Dems are more trusted than Republicans to handle the nation’s main problems (40-34), more trusted to help the middle class (52-32), more trusted on the minimum wage (49-33); and more trusted on health care (43-35). Meanwhile, women trust Dems over Republicans on their issues by 54-27. (Republicans win on guns and the deficit.)

All of this underscores what Ed Kilgore and Sasha Issenberg have been arguing: That if Dems are going to have any chance of offsetting the “midterm dropoff” among their core voters, issues alone aren’t going to do it. The sheer grunt work of contacting voters again and again and urging them out to the polls is what it will take, and it won’t be easy. The one bit of good news is that Democrats are aware of this and are planning accordingly.

Bouie warns the GOP not to get cocky:

[I]f I were a Republican strategist, I would advise my clients to ease up on the anti-Obamacare rhetoric. … As a whole, the public opposes repeal and doesn’t support the GOP’s scorched-earth approach to the law. If the GOP claims a mandate for their opposition, it risks a repeat of 2011, when it destroyed its standing with voters through a series of stunt votes and standoffs. This didn’t doom its presidential chances the following year, but it was an unnecessary obstacle.