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Offering commentary and analysis from Washington, Oregon, and Idaho, The Cascadia Advocate is the Northwest Progressive Institute's unconventional perspective on world, national, and local politics.

Wednesday, June 25th, 2014

In landmark ruling, U.S. Supreme Court bars warrantless searches of mobile phones

Who says there’s no such thing as privacy in the digital age? Not John Roberts’ Supreme Court, which today issued a much-needed decision ruling that American police forces must generally obtain a warrant before they can legally search the mobile phone of someone they have arrested. Roberts’ majority opinion was signed by every other justice, except for Samuel Alito, who wrote a concurring opinion.

SCOTUSBlog’s Lyle Denniston has an excellent summary of the decision, which will have far-reaching implications almost immediately. Here’s an excerpt from his post:

The Court rejected every argument made to it by prosecutors and police that officers should be free to inspect the contents of any cellphone taken from an arrestee. It left open just one option for such searches without a court order: if police are facing a dire emergency, such as trying to locate a missing child or heading off a terrorist plot.  But even then, it ruled, those “exigent” exceptions to the requirement for a search warrant would have to satisfy a judge after the fact.

The ruling was such a sweeping embrace of digital privacy that it even reached remotely stored private information that can be reached by a hand-held device — as in the modern-day data storage “cloud.” And it implied that the tracking data that a cellphone may contain about the places that an individual visited also is entitled to the same shield of privacy.

The Court’s ruling drew some suggestions by Justice Samuel A. Alito, Jr., to narrow its scope, but it did not accept those. The result was the broadest constitutional ruling on privacy in the face of modern technology since the Court’s ruling two Terms ago limiting police use of satellite-linked GPS tracking of a suspect’s movements by car.

The Court resoundingly rejected the government’s contention that a search of data on a phone is “materially indistinguishable” from a physical search. Chief Justice John Roberts schooled lawyers for the Justice Department on the difference:

Cell phones differ in both a quantitative and a qualitative sense from other objects that might be kept on an arrestee’s person.

The term “cell phone” is itself misleading shorthand; many of these devices are in fact minicomputers that also happen to have the capacity to be used as a telephone. They could just as easily be called cameras, video players, rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps, or newspapers.

One of the most notable distinguishing features of modern cell phones is their immense storage capacity. Before cell phones, a search of a person was limited by physical realities and tended as a general matter to constitute only a narrow intrusion on privacy.

Most people cannot lug around every piece of mail they have received for the past several months, every picture they have taken, or every book or article they have read — nor would they have any reason to attempt to do so. And if they did, they would have to drag behind them a trunk of the sort held to require a search warrant in Chadwick, supra, rather than a container the size of the cigarette package in Robinson.

The opinion goes on to talk more in depth about typical mobile phone storage capacity, which currently ranges from sixteen to sixty-four gigabytes and is enough to store thousands of pictures, songs, notes, calendar entries, documents, text messages, and extremely detailed phone logs. The justices also noted there are many applications that a user might install that allow them to manage their lives:

There are apps for Democratic Party news and Republican Party news; apps for alcohol, drug, and gambling addictions; apps for sharing prayer requests; apps for tracking pregnancy symptoms; apps for planning your budget; apps for every conceivable hobby or pastime; apps for improving your romantic life.

Reading through the decision, it’s astonishing to see how much the Roberts Court got right. This ruling is very much the inverse of Citizens United and McCutcheon. It is unanimous, sound and well justified; it upholds the Fourth Amendment to the United States Constitution and places restrictions on federal, state, and local law enforcement agencies alike, which were sorely needed.

We at NPI believe this ruling could be incredibly important in the years to come. The Roberts Court showed today that it understands the privacy implications of new technologies like mobile phones and cloud computing, even if many members of Congress do not. With its ruling, the Court sent a clear message to every police department and FBI office in the country: Get a warrant before you search the mobile device of someone you’ve arrested.

This is a big deal. It means that the police can no longer simply concoct a pretext for arresting someone and then proceed to run a search of the device(s) carried by that individual. The Fourth Amendment still matters!

The Obama administration did not have an immediate reaction to the ruling. But many privacy advocates did. The American Civil Liberties Union applauded the decision. The organization’s national legal director, Steven R. Shapiro, commended the Court for ensuring the protections offered by the Fourth Amendment remain available to Americans in the digital age.

“By recognizing that the digital revolution has transformed our expectations of privacy, today’s decision is itself revolutionary and will help to protect the privacy rights of all Americans,” he said. “We have entered a new world but, as the court today recognized, our old values still apply and limit the government’s ability to rummage through the intimate details of our private lives.”

The Electronic Frontier Foundation, which filed an amicus brief in the case, also cheered the ruling. The EFF, based in the Bay Area, has been at the forefront of protecting Americans’ digital rights for over two decades.

“These decisions are huge for digital privacy,” EFF Staff Attorney Hanni Fakhoury said. “The court recognized that the astounding amount of sensitive data stored on modern cell phones requires heightened privacy protection, and cannot be searched at a police officer’s whim. This should have implications for other forms of government electronic searches and surveillance, tightening the rules for police behavior and preserving our privacy rights in our increasingly digital world.”

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