The Supreme Court appears willing to allow some defenses against warrantless searches of cell phones during an arrest—but is largely uncertain of exactly what privacy standards to adopt for a technology that increasingly contains enormous amounts of personal information.
The justices heard back-to-back arguments Tuesday in two related cases involving the privacy of personal information stored on cell phones. At issue: how much information police should be allowed to pull from the device after an arrest before obtaining a search warrant.
Riley v. California asks the Court to consider whether state police erred in 2009 when searching a San Diego man's smartphone twice—once at the scene of the arrest and again at the police precinct—before obtaining a warrant. Its companion case, U.S. v. Wurie, concerns a 2007 arrest of a suspected drug dealer in Boston who, upon arrest, had his flip phone seized and his call history promptly searched by authorities.
Several of the justices expressed a desire to develop a nuanced standard that would create some protections against phone searches during an arrest in many cases, but allow them in "exigent," or especially necessary, circumstances—such as if a suspect was thought to be in possession of an explosive that could be detonated by phone.
But two hours of exhaustive and at times circular debate yielded little indication as to what such a standard would look like. At several points justices mused about whether cell phones had a "pre-digital age" analogue to which it could compare a modern smartphone.
"Smartphones do present difficult problems," Justice Samuel Alito conceded early on. "What is the difference between looking at hard-copy photos in a billfold and digital photos that are saved in the memory of a cell phone?"
But the justices generally concluded that comparisons between the two don't hold up, largely because of a phone's ability to hold nearly limitless personal information—and the increasing omnipresence with which they are carried around.
"The arrested person has photos, pre-digital age. Of course you can look at them," Justice Stephen Breyer said. "Absolutely analogous, except there are [now] 10,000 [photos]. It's indeed his entire life in photos."
The Fourth Amendment protects Americans from unreasonable searches, a principle that usually extends to items considered personal property. But courts have historically granted police a narrow authority to search a suspect and the area within his reach "from incident to arrest."
State prosecutors and the Justice Department say police need to be able to search cell phones and, by extension, other personal electronic devices to obtain necessary evidence and catch criminals. But privacy advocates contend that the vast amount of data that phones can now hold constitute an X-ray window into a person's private life. They warn that earlier rulings granting search authority to police never intended for so much sensitive information to be subject to a warrantless search.
A number of justices appeared sympathetic to the argument that smartphones, because of the vast amount of data they can hold, should be generally off-limits to police searches. The Court's liberal wing in particular articulated concern about granting police broad authority to search phones, as most arrests result from minor offenses.
Justice Elena Kagan noted that police could arrest someone for driving without a seat belt and proceed to look through a phone's entire contents.
"The police could take that phone and could look at every single email that person has written, including work emails, including emails to family members, very intimate communications—could look at all that person's bank records, could look at all that person's medical data, could look at that person's calendar, could look at that person's GPS and find out every place that person had been recently," Kagan said. "That strikes me as a very different kind of world than the world … where somebody has pictures of their family in a billfold."
Kagan continued: "Most people now do carry their lives on their cell phones, and that will only grow every single year as, you know, young people take over the world."
Kagan's remark elicited a round of laughter in the chamber, but it underscores the potential for far-reaching ramifications of the Court's opinion in these cases. Nine out of 10 Americans now own cell phones, and more than half own a smartphone.
Conservative Justice Antonin Scalia, however, did not convey much alarm to such police searches. Scalia, who some thought would be a justice to watch in the case because of his recent opinion against "unreasonable searches," instead suggested phone searches should be limited only to evidence related to the suspected crime in question.
But other justices were skeptical that any limiting test could practically be applied to a smartphone's contents.
"If you're arresting somebody on the grounds of suspicion that he's a gang member and you have evidence to support that, what part of the smartphone is not likely to have pertinent evidence? What application is not?" Chief Justice John Roberts asked during arguments for Riley v. California, the first case considered.
Riley's attorney, who attempted to persuade the Court that an "app-by-app" standard is a better alternative than the current one, responded that he thought a banking app or an online-dating app would be off-limits. Roberts scoffed, noting that a banking app would help authorities trace money in a drug deal.
Civil-liberties and privacy advocates see Tuesday's cases as yet another battlefront in an ongoing war over how much data authorities and corporations should be allowed to gather, store, and analyze. The Court's rulings could portend how it leans in any number of future cases dealing with digital privacy.
This article appears in the April 30, 2014 edition of NJ Daily.