The Supreme Court Is About to Decide the Future of Cell-Phone Privacy

Two cases before the Court on Tuesday will revisit Fourth Amendment principles that protect Americans from unreasonable searches during an arrest.

A woman gives a phone calle with a brighty colored smartphone in Bordeaux on May 3, 2013 .
National Journal
Dustin Volz
April 28, 2014, 8:09 a.m.

Do po­lice have the right to hunt through your iPhone’s treas­ure trove of text mes­sages, pho­tos, and call his­tory dur­ing an ar­rest?

The Su­preme Court will at­tempt to an­swer that ques­tion Tues­day as it hears two re­lated cases that con­sider the pri­vacy pro­tec­tions of per­son­al data in cell phones.

At is­sue in both cases is wheth­er — and to what ex­tent — law-en­force­ment of­fi­cials have the right to war­rant­lessly search phones dur­ing or shortly after an ar­rest. Po­ten­tially far-reach­ing de­cisions are ex­pec­ted in June.

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 bad guys. 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.

“Al­low­ing po­lice of­ficers to search a per­son’s cell phone without a war­rant fol­low­ing an ar­rest would be a sub­stan­tial in­fringe­ment on pri­vacy, is un­ne­ces­sary, and un­reas­on­able un­der the Fourth Amend­ment,” the Elec­tron­ic Pri­vacy In­form­a­tion Cen­ter wrote in a friend-of-the-court brief. “There is no need to al­low war­rant­less searches when cur­rently avail­able tech­niques al­low law en­force­ment to se­cure the cell-phone data pending a ju­di­cial de­term­in­a­tion of prob­able cause.”

The Fourth Amend­ment pro­tects Amer­ic­ans from un­reas­on­able searches, a prin­ciple that of­ten also ex­tends to items con­sidered per­son­al prop­erty. But dec­ades-old court rul­ings have gran­ted po­lice the nar­row au­thor­ity to search a sus­pect and the area with­in his reach “from in­cid­ent to ar­rest.”

That stand­ard, however, was made long be­fore cell phones ex­is­ted and was largely in­ten­ded to pre­vent a sus­pect from des­troy­ing evid­ence or grabbing a nearby weapon. But the near-ubi­quity of cell phones — and the grow­ing amount of per­son­al in­form­a­tion that can be stored on them — has now promp­ted con­sid­er­a­tion by the Su­preme Court.

In Ri­ley v. Cali­for­nia, the Court will weigh 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. A com­prom­ising photo dis­covered on the phone showed the man pos­ing with a gang mem­ber and a car sus­pec­ted in a drive-by shoot­ing. The photo was later used in court as evid­ence in a tri­al that res­ul­ted in a 15-year pris­on sen­tence.

Cali­for­nia claims that au­thor­it­ies ac­ted prop­erly and that pre­vi­ous court de­cisions have con­sist­ently up­held the right to search per­son­al items a sus­pect is car­ry­ing at the time of ar­rest.

“Cali­for­nia re­cog­nizes the re­mark­able ad­vances that have been, and con­tin­ue to be, made in com­mu­nic­a­tions, stor­age, and net­work­ing tech­no­logy,” the state’s brief reads. “The facts of this case, however, provide no basis for de­par­ture from long-stand­ing Fourth Amend­ment stand­ards.”

The second case be­fore the Court, U.S. v. Wurie, con­cerns a 2007 ar­rest of an al­leged drug deal­er in Bo­ston who, upon ar­rest, had his flip phone seized and his call his­tory promptly searched by au­thor­it­ies. The search of call logs led po­lice to a res­id­ence — lis­ted in the phone as “my house,” though dif­fer­ent than the ad­dress the sus­pect provided — where they found (this time, with a war­rant in hand) fire­arms and crack co­caine.

The Justice De­part­ment, in its Wurie brief, opened the door to a nu­anced rul­ing that wouldn’t be an all-or-noth­ing pro­pos­i­tion. But it sug­ges­ted that cell phones must be in­cluded in any for­mula.

“Even if it were ap­pro­pri­ate to cre­ate item-by-item ex­cep­tions to of­ficers’ au­thor­ity to search an ar­restee, no sound jus­ti­fic­a­tion ex­ists to ex­clude cell phones from the gen­er­al rule,” So­li­cit­or Gen­er­al Don­ald Ver­rilli will ar­gue Tues­day. “In today’s world, cell phones are par­tic­u­larly likely to con­tain evid­ence of un­law­ful activ­ity and to help law-en­force­ment of­ficers identi­fy sus­pects they have ap­pre­hen­ded.”

Ex­actly how the Court could nar­rowly tail­or its de­cision is un­clear, al­though the fact that one case deals with an an­ti­quated flip phone and the oth­er with a smart­phone could of­fer some guid­ance. But it also un­der­scores how the tech­no­lo­gic­al cap­ab­il­it­ies of phones evolve rap­idly and there­fore prove dif­fi­cult to de­vel­op con­crete stand­ards.

Tues­day’s cases have drawn wide in­terest for the po­ten­tially far-reach­ing rami­fic­a­tions the Court’s opin­ions could have on every Amer­ic­an’s rights to di­git­al pri­vacy. Four­teen news or­gan­iz­a­tions filed a brief ar­guing that phone pri­vacy is cru­cial to a free press and must be pro­tec­ted. On Monday, one of them, The New York Times, strongly urged the Su­preme Court to not upend long-stand­ing Fourth Amend­ment prin­ciples to ac­com­mod­ate the chal­lenges that law en­force­ment claims phones present.

“Mo­bile phones aren’t weapons and pose no phys­ic­al threat, and any evid­ence on the phone can be pre­served by us­ing spe­cial devices to pre­vent re­mote de­le­tion of the data,” the pa­per’s ed­it­or­i­al board wrote Monday. “Per­mit­ting po­lice of­ficers to search a mo­bile phone, or any di­git­al stor­age device, es­sen­tially gives them ac­cess to someone’s en­tire life; al­low­ing them to do so without a war­rant renders the Fourth Amend­ment’s guar­an­tee against un­reas­on­able searches and seizures mean­ing­less.”

Wash­ing­ton has been gripped in a rolling de­bate over how much of Amer­ic­ans’ per­son­al di­git­al com­mu­nic­a­tions should be off-lim­its to gov­ern­ment since former con­tract­or Ed­ward Snowden leaked de­tails about the Na­tion­al Se­cur­ity Agency’s bulk col­lec­tion of phone metadata last June.

While the is­sues be­fore the Court have noth­ing to do with NSA sur­veil­lance, civil-liber­ties and pri­vacy ad­voc­ates see the 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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