Brian Roche (FPD Intern, 2014)
The Fourth Amendment to the United States Constitution provides:
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
Given the historical context of the founding generation’s frustration over English “general warrants” and “writs of assistance,” this would seem to stand for the simple proposition that, as a general rule, the government must respect people’s privacy. Or, to state it in the alternative, the government does have the power to search a person’s property, but only after obtaining a warrant to do so based on probable cause.
Unfortunately, however, the drafters of the Fourth Amendment neglected to mention so-called smart phones. Nevertheless, in a well-written and thought-provoking opinion authored by Chief Justice John Roberts, the Supreme Court has shown uncharacteristic technological aplomb and issued a ruling that provides meaningful privacy protection without hindering law enforcement’s legitimate interest in collecting evidence and protecting officers’ safety.
As the Court put it:
“Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple-get a warrant.”
But wait, cries the government, warrants takes too long! Requiring police to get one before searching arrestees’ phones gives criminals the advantage! What if they remotely wipe the data? What if there is information on the phone about an impending threat?
Fear not, replies the Court. As the Chief Justice explains, the technology at issue here is available not just to criminals, but also to police departments and courts, and has made the process of obtaining warrants much more efficient. For example, the technology exists, and has been used in at least one jurisdiction, to allow police to email warrant requests directly to judges’ iPads and have them returned, signed, within fifteen minutes. The Court also points out that there are simple counter-measures police can use to prevent the remote wiping of phone data, such as placing the phone in a radio-wave-proof Faraday bag, removing its battery, or simply turning it off. Furthermore, if police have reasonable suspicion that there are indeed more ruffians on the way, the exigent circumstance exception still allows them to conduct a warrantless search of the phone.
In rejecting the government’s argument that a search of all data on a cell phone is “materially indistinguishable” from a search of physical items like purses and wallets, the Court observed:
“That is like saying a ride on horseback is materially indistinguishable from a flight to the moon. Both are ways of getting from point A to point B, but little else justifies lumping them together. Modern cell phones, as a category, implicate privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet, or a purse. A conclusion that inspecting the contents of an arrestee’s pockets works no substantial additional intrusion on privacy beyond the arrest itself may make sense as applied to physical items, but any extension of that reasoning to digital data has to rest on its own bottom.”
The Court has thereby explicitly recognized a right to privacy with regard to data, at least in cell phone searches incident to arrest. It remains to be seen what this decision could mean for governmental collection of electronic data in general, but it is heartening to hear the Supreme Court say, “the fact that technology now allows an individual to carry [vast amounts of personal] information in his hand does not make the information any less worthy of the protection for which the Founders fought.”
For the full opinion click here or go to Library>Supreme Court Cases–new