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.”

About the author

Andrew Villeneuve is the founder and executive director of the Northwest Progressive Institute, as well as the founder of NPI's sibling, the Northwest Progressive Foundation. He has worked to advance progressive causes for over two decades as a strategist, speaker, author, and organizer. Andrew is also a cybersecurity expert, a veteran facilitator, a delegate to the Washington State Democratic Central Committee, and a member of the Climate Reality Leadership Corps.

Adjacent posts