During
oral arguments today in
two cases raising similar privacy issues, the Supreme Court
seemed inclined to impose a rule that would limit police access to
the cellphones of people they arrest. Under the
usual standard for a “search incident to an arrest,” police may
seize and examine anything they find on an arrestee’s person
without a warrant. The question for the Court was whether that rule
should apply even when the item discovered by police is a portable
computer that contains a wealth of personal information, including
contacts, calendars, correspondence, journals, photographs, videos,
telephone messages, purchases, reading habits, musical tastes,
browsing histories, travels, and legal, financial, and medical
records. As Justice Elena Kagan
put it during oral argument in Riley
v. California, “people carry their entire lives on
cell phones.”
Other justices expressed similar misgivings. “We’re living in a
in a new world,”
said Justice Anthony Kennedy during oral argument in
U.S. v. Wurie. “Justice Kagan’s questions point out the
fact that someone arrested for a minor crime has their whole
existence exposed on this little device.” Alluding to the fact that
the Court has
upheld custodial arrests (and
strip searches!) for crimes as minor as failing to buckle your
seat belt, Justice Antonin Scalia
said “it seems absurd that you should be able to search that
person’s iPhone.” Justice Ruth Bader Ginsburg took up the same
theme. “Take an offense like failing to buckle up, even driving
under the influence,” she
told California Solicitor General Edward Dumont. “It’s your
rule…that the cell phone is fair game no matter what the crime,
no matter how relatively unimportant the crime….That opens the
world to the police.”
Justice Sonia Sotomayor
emphasized the difference in kind and quantity between the
information stored in a cellphone and the information that can be
gleaned from items such as wallets and cigarette packages:
Practically speaking, a person can only carry so much on their
person. That is different, because…a billfold of photographs
is…anywhere from one to five, generally, and not much more. But
now we’re talking about potentially thousands, because with digital
cameras people take endless photos and it spans their entire
life….A GPS can follow people in a way that prior following by
police officers in cars didn’t permit.
Assuming that the rule for a cellphone should be different from
the rule for a wallet, what should the rule be? Scalia
suggested a warrantless search might be allowed when police
reasonably believe the cellphone contains information related to
the crime for which the owner has been arrested. “That will cover
the bad cases,” he said, “but it won’t cover the …seat belt
arrest.” Dumont, speaking for the state of California, said “that
could be a perfectly reasonable ruling.” Jeffrey Fisher, speaking
for a defendant who was convicted based partly on information from
his cellphone, disagreed:
[With] lots of minor crimes, like speeding…DUI, littering,
[police] can make a fairly convincing argument sometimes that
evidence on the phone would be relevant to that crime of
arrest….Take the suspended license. You may have an email from
the DMV telling you you better come in and renew. If that opens up
every American’s entire life to the police department, not just at
the scene but later at the station house and downloaded into their
computer forever, I think you will fundamentally have changed the
nature of privacy that Americans fought for at the founding of the
Republic and that we’ve enjoyed ever since.
Justice Stephen Breyer
proposed a different rule, allowing warrantless searches of
cellphones only in “exigent circumstances,” which would include
scenarios involving remotely detonated bombs as well as situations
where police reasonably worry that the data on a phone will be
erased or become inaccessible if they wait for a warrant. The
latter possibility relates to one of the original rationales for
warrantless searches of arrestees and their possessions: preventing
the destruction of evidence. The government in both cases therefore
emphasized the risks of remote data wiping and automatic
encryption, although several justices were skeptical that such
fears justified proceeding without a warrant. Simple safeguards,
such as turning off the phone’s wireless functions or putting it in
signal-blocking bag, can guard against remote wiping. Encryption is
relevant only if police seize the phone while it is on and
unlocked, in which case they can keep it that way until they get a
warrant by disabling the auto lock feature. And if police have the
time to take a phone back to the precinct house and examine it at
their leisure—as they did in Riley, where the search was
not conducted until two hours after the arrest—the fear of imminent
evidence destruction hardly seems plausible.
The truth is that Court’s rules for arrest-related searches have
been needlessly deferential for decades. Preserving evidence and
protecting officers from hidden weapons were the two original
justifications for making an exception to the warrant requirement.
But neither of those goals requires reading detailed information
about an arrestee, whether it is stored on a cellphone or in a
notebook. Barring far-fetched emergencies, there is no legitimate
reason why police, having secured such evidence, cannot go to the
trouble of getting a court order authorizing them to examine it.
That point is especially clear in the case of cellphones and other
portable electronic devices, which routinely contain just the sort
of private information the Framers meant to protect when they
banned unreasonable searches of people’s “papers” and
“effects.”
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