For me, the ongoing question that needs to be addressed by the court is this: Is the content of your smartphone considered to be documentary evidence (something

For me, the ongoing question that needs to be addressed by the court is this: Is the content of your smartphone considered to be documentary evidence (something you have) or testimony (something you know). I know I'm mixing definitions of the something you have/know combination, but it's a difference without a distinction, IMHO. I tell my phone, either directly or indirectly, all sorts of things that I would not otherwise document. Locations I've visited, for example. That's something that, unless I've been surveilled, only I know. By unlocking the phone, have I allowed access to documentary evidence, or have I allowed access to an extension of my mind? Is a smartphone a privileged companion? Like an attorney, or a doctor, or a partner? The spousal communications privilege in the US protects the personal conversations I have with my wife from being disclosed via compelled testimony. If she tells me that she committed a crime, or vice-versa, the recipient of that communication cannot be compelled to testify against the utterer. Further, spousal testimonial privilege means that she could not be compelled to describe her observations if they may incriminate me. We have similar affordances in the US for communications with legal counsel, or with medical personnel. I'm going to go one step further and say that 95% of you, dear readers, tell or otherwise provide secrets to your phone that, if you somehow had to communicate to an actual person, you'd only be willing to tell your spouse, your doctor or your lawyer. To me, that makes my smartphone a privileged confidant. And because it routinely collects information that I do not directly provide it, even though I'm capable of observing and remembering it myself, it acts like (and I treat it like) an extension of my mind. An augmentation that increases the capacity of my own brain's memory. I'm not in the habit of committing crimes, though I (like most of you) have committed some infractions in the past (speeding, "TP-ing" a house, a bounced check - ahh, the indiscretions of youth). But the knowledge in my head and the communications I have with privileged recipients may, if taken out of context, be used as documentary evidence supporting any number of charges against me. For example, the fact that I went to Home Depot four times in one week over a year ago could support the charge that I had assembled some device that was later used in a violent crime. That's a scary place to be, isn't it? To know that you did nothing wrong, and yet the vague memories you have of visiting Home Depot last year have potentially been documented more thoroughly by your phone. Is the common man supposed to assume that a smartphone they bought just so their kids can FaceTime with their grandmother 1,500 miles away is silently surveilling them, and can be forced to disclose all manner of information about them? It's a new world, and the laws of the land are old. Legislation moves at a snails pace already, but compared to the rapidity of technological advancement, the law moves like the pitch drop experiment.