The Supreme Court Just Delivered a Huge Victory to Cell-Phone Privacy

In a unanimous decision, the Court ruled that police generally need a warrant before searching a person’s cell phone.

People use smartphones to photograph the Nicholas K show during the Mercedes-Benz Fashion Week Fall 2013 collections on February 7, 2013.
National Journal
Dustin Volz
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Dustin Volz
June 25, 2014, 6:42 a.m.

In a sur­pris­ingly force­ful de­cision, the Su­preme Court on Wed­nes­day un­an­im­ously ruled that po­lice may not search the di­git­al con­tents of an ar­res­ted per­son’s cell phone be­fore ob­tain­ing a war­rant.

The sweep­ing opin­ion is seen by pri­vacy ad­voc­ates as a sub­stan­tial vic­tory in the fight against gov­ern­ment’s tight­en­ing grip on the private, di­git­al com­mu­nic­a­tions of U.S. cit­izens, and could be a pre­curs­or to how the Court handles oth­er ques­tions re­gard­ing gov­ern­ment sur­veil­lance, an is­sue that has been at the fore­front of in­ter­na­tion­al policy de­bates since the Ed­ward Snowden leaks first sur­faced last June.

Chief Justice John Roberts, writ­ing for the Court, said the con­tents of a per­son’s phone are pro­tec­ted un­der the Fourth Amend­ment and must be treated as dif­fer­ent in “a quant­it­at­ive and qual­it­at­ive sense” from oth­er, non-di­git­al per­son­al items.

“Mod­ern cell phones are not just an­oth­er tech­no­lo­gic­al con­veni­ence,” Roberts wrote. “The fact that tech­no­logy now al­lows an in­di­vidu­al to carry such in­form­a­tion in his hand does not make the in­form­a­tion any less worthy of the pro­tec­tion for which the Founders fought. Our an­swer to the ques­tion of what po­lice must do be­fore search­ing a cell phone seized in­cid­ent to an ar­rest is ac­cord­ingly simple — get a war­rant.”

In a pair of re­lated cases be­fore the Court, one in­volving a smart­phone and an­oth­er a flip phone, state pro­sec­utors and the Justice De­part­ment had ar­gued that po­lice need to be able to search cell phones and po­ten­tially oth­er per­son­al elec­tron­ic devices to ob­tain the evid­ence needed to thwart crim­in­al plots and catch sus­pects. But a wide swath of pri­vacy ad­voc­ates pushed back, say­ing that the vast amount of con­tent typ­ic­ally stored on a per­son’s phone could, if searched without a war­rant, rep­res­ent a siz­able, in­trus­ive breach in­to one’s private life.

The Court did note that some case-by-case ex­cep­tions to the war­rant re­quire­ment may ap­ply, such as dur­ing “ex­i­gent” or press­ing cir­cum­stances wherein an ar­rest­ing of­ficer’s safety is in jeop­ardy.

In a con­cur­ring opin­ion, con­ser­vat­ive Justice Samuel Alito said the tech­no­lo­gic­al de­mands of today called for “a new bal­an­cing of law en­force­ment and pri­vacy in­terests.” But Alito ad­ded that he would prefer le­gis­latures were giv­en more au­thor­ity in cre­at­ing rules to lim­it the war­rant re­quire­ment in spe­cial cases.

“We should not mech­an­ic­ally ap­ply the rule used in the pre­di­git­al era to the search of a cell phone,” Alito wrote. “Many cell phones now in use are cap­able of stor­ing and ac­cess­ing a quant­ity of in­form­a­tion, some highly per­son­al, that no per­son would ever have had on his per­son in hard-copy form.”

But the Court also re­cog­nized the po­ten­tial for its rul­ing to hamper po­lice activ­ity. Found­a­tion­al pri­vacy rights, however, must re­main para­mount, the justices reasoned.

“It is true that this de­cision will have some im­pact on the abil­ity of law en­force­ment to com­bat crime,” states the Court’s sum­mary of the opin­ions. “But the Court’s hold­ing is not that the in­form­a­tion on a cell phone is im­mune from search; it is that a war­rant is gen­er­ally re­quired be­fore a search.”

The Fourth Amend­ment pro­tects Amer­ic­ans from un­reas­on­able searches, which typ­ic­ally ex­tends to items con­sidered per­son­al prop­erty. But dec­ades of jur­is­pru­dence have gran­ted law-en­force­ment of­fi­cials the nar­row right to search a sus­pect and the area with­in his reach “from in­cid­ent to ar­rest.”

Those dec­ades-old stand­ards, however, were craf­ted long be­fore cell phones be­came ubi­quit­ous, or even ex­is­ted at all, and were largely in­ten­ded to pre­vent a sus­pect from des­troy­ing evid­ence or us­ing a nearby weapon.

Pri­vacy ad­voc­ates quickly cheered the de­cision and said it rep­res­ents a paradigm-shift in how pri­vacy con­cerns are be­ing con­sidered in Wash­ing­ton.

“The de­bate on pri­vacy is clearly chan­ging in a dra­mat­ic fash­ion, and 2014 has shown that in a num­ber of ways,” said Har­ley Gei­ger, seni­or coun­sel for the Cen­ter for Demo­cracy & Tech­no­logy, not­ing the House’s pas­sage of a gov­ern­ment-sur­veil­lance re­form bill as a re­cent ex­ample. “The Su­preme Court’s opin­ion re­cog­nizes that … the qual­ity and quant­ity of di­git­al in­form­a­tion that we carry around with us is dif­fer­ent than phys­ic­al in­form­a­tion, and is de­serving of rules that re­cog­nize those dif­fer­ences.”

Sen­ate Ju­di­ciary Chair­man Patrick Leahy also hailed the de­cision. In a state­ment, the Ver­mont Demo­crat called the rul­ing “a wake-up call that we need to up­date our laws to keep pace with tech­no­lo­gic­al ad­vances” while not­ing the same war­rant-first stand­ard should ad­di­tion­ally be ap­plied to gov­ern­ment searches of email com­mu­nic­a­tions, a cause he has cham­pioned with le­gis­la­tion that would up­date the Elec­tron­ic Com­mu­nic­a­tions Pri­vacy Act.

Be­fore Tues­day’s rul­ing, state and fed­er­al courts were frac­tured on when a war­rant was needed to rum­mage through a sus­pect’s cell phone “from in­cid­ent to ar­rest” and what con­tents should be al­low­able or off lim­its for au­thor­it­ies to search.

But in back-to-back or­al ar­gu­ments on a pair of re­lated cases the Court heard in April, justices ap­peared torn on wheth­er to draw a line on war­rant­less searches, and ex­pressed frus­tra­tion at the chal­lenges of de­term­in­ing where that line should be in the ever-chan­ging tech­no­lo­gic­al land­scape.

Lib­er­al Justice Elena Kagan most vo­cally raised pri­vacy con­cerns dur­ing ar­gu­ments, not­ing that po­lice could ar­rest someone for driv­ing without a seat belt and then pro­ceed to look through the en­tire con­tents of that sus­pect’s phone.

The two cases be­fore the Court were joined in­to one de­cision. Ri­ley v. Cali­for­nia asked 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, con­cerned 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.

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