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
Add to Briefcase
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.

What We're Following See More »
SANS PROOF
NRA Chief: Leftist Protesters Are Paid
14 hours ago
UPDATE
NEW TRAVEL BAN COMING SOON
Trump Still on Campaign Rhetoric
17 hours ago
UPDATE
“WE’RE CHANGING IT”
Trump Rails On Obamacare
17 hours ago
UPDATE

After spending a few minutes re-litigating the Democratic primary, Donald Trump turned his focus to Obamacare. “I inherited a mess, believe me. We also inherited a failed healthcare law that threatens our medical system with absolute and total catastrophe” he said. “I’ve been watching and nobody says it, but Obamacare doesn’t work.” He finished, "so we're going to repeal and replace Obamacare."

FAKE NEWS
Trump Goes After The Media
17 hours ago
UPDATE

Donald Trump lobbed his first attack at the “dishonest media” about a minute into his speech, saying that the media would not appropriately cover the standing ovation that he received. “We are fighting the fake news,” he said, before doubling down on his previous claim that the press is “the enemy of the people." However, he made a distinction, saying that he doesn't think all media is the enemy, just the "fake news."

FBI TURNED DOWN REQUEST
Report: Trump Asked FBI to Deny Russia Stories
18 hours ago
THE LATEST

"The FBI rejected a recent White House request to publicly knock down media reports about communications between Donald Trump's associates and Russians known to US intelligence during the 2016 presidential campaign, multiple US officials briefed on the matter tell CNN. But a White House official said late Thursday that the request was only made after the FBI indicated to the White House it did not believe the reporting to be accurate."

Source:
×
×

Welcome to National Journal!

You are currently accessing National Journal from IP access. Please login to access this feature. If you have any questions, please contact your Dedicated Advisor.

Login