Supreme Court Wants to Draw a Line on Cell-Phone Privacy

Justices showed a desire to develop some standard for when authorities can and cannot warrantlessly search a suspect’s cell phone during an arrest.

Supreme Court Justices, Chief Justice John Roberts, Anthony Kennedy, Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan applaud before President Barack Obama's State of the Union address during a joint session of Congress on February 12, 2013 in Washington, D.C.
National Journal
Dustin Volz
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Dustin Volz
April 29, 2014, 10:50 a.m.

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.

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