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SCOTUS: ‘Privacy comes at a cost’ but ‘get a warrant’ before searching that phone

Jun 26, 20145 mins
Data and Information SecurityMicrosoftSecurity

The Supreme Court ushered in a huge win for digital privacy that will help pave the future of the Fourth Amendment.

In a huge win for digital privacy that will help pave the future of the Fourth Amendment, the Supreme Court unanimously ruled that Johnny Law needs a warrant before he can search the cellphone of a person he arrested.

Despite a former DHS official’s previous opinion that reduced the Supreme Court Justices to “nine Baby Boomers” who wouldn’t know the “creepy line” if it bit them on the butt, yesterday SCOTUS showed that people are still entitled to Fourth Amendment protections even in the digital age. “Our answer to the question of what police must do before searching a cellphone seized incident to an arrest is accordingly simple—get a warrant,” they ruled (pdf).

Regarding Riley v. California, Chief Justice John Roberts wrote that cellphones “are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy. A smart phone of the sort taken from Riley was unheard of ten years ago; a significant majority of American adults now own such phones.”

“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,” Roberts added. “They could just as easily be called cameras, video players, rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps, or newspapers.”

The New York Times wrote, “In what may be foreshadowing of future developments in privacy law, Chief Justice Roberts approvingly cites a high-profile concurring opinion by Justice Sotomayor in a 2012 case holding that the police needed a warrant to attach a GPS device to monitor movements by a suspect’s car.”

The decision boiled down to telling cops to “get a warrant” first, but the police can still search phones without a warrant if there are “exigent circumstances” such as “imminent danger to life or the possibility that evidence would be destroyed.”

Justice Roberts added:

We cannot deny that our decision today will have an impact on the ability of law enforcement to combat crime. Cell phones have become important tools in facilitating coordination and communication among members of criminal enterprises, and can provide valuable incriminating information about dangerous criminals. Privacy comes at a cost.

Justice Samuel Alito also remarked on a smartphone’s immense storage capacity before he added that “it would be very unfortunate if privacy protection in the 21st century were left primarily to the federal courts using the blunt instrument of the Fourth Amendment. Legislatures, elected by the people, are in a better position than we are to assess and respond to the changes that have already occurred and those that almost certainly will take place in the future.”

You should either download or bookmark this Opinion of the Court (pdf). Debate, legal breakdowns, and opinions have since flooded the web.

EFF Staff Attorney Hanni Fakhoury called the decision “huge for digital privacy. 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.”

Yet Mark Eckenwiler, former deputy chief of the Justice Department’s computer crime section, argued Riley won’t make that big of a difference because the police will simply ask for consent to search a phone. “And an extraordinary number of arrestees will give that consent,” he said, “just as people consent today to all sorts of searches of cars and containers, very much against their personal interest.”

SCOTUS twice cited Orin Kerr’s “Accounting for Technological Change.” Kerr, who is a law professor at George Washington University, disagreed with the Linda Greenhouse’s argument that appeared in the New York Times; she suggested the results of United States v. Jones and Riley can be explained by the “Justices seeing themselves as potential targets of the government.” Greenhouse wrote that the Supreme Court’s ruling was less likely to be a result of “empathy;” instead, “the justices are walking in their own shoes. The ringing cellphone could be theirs — or ours.”

Kerr is skeptical the rulings in Jones and Riley were cases in which the justices “could never imagine that happening to them;” that they “could never imagine being arrested,” or that “they can’t imagine ever being the target of a massive narcotics conspiracy investigation.” Kerr wrote that he is more inclined to believe “Jones and Riley are about equilibrium-adjustment.” He added, “An interesting aspect of Jones and Riley from the perspective of equilibrium-adjustment is that the technological change was relatively easy to understand. Everyone has a cell phone and is familiar with smart phones. Most of us have experience with GPS devices in cars.”

No matter the reason, in the end the pro-privacy decisions lay the groundwork for the future of the Fourth Amendment in this digital age.

ms smith

Ms. Smith (not her real name) is a freelance writer and programmer with a special and somewhat personal interest in IT privacy and security issues. She focuses on the unique challenges of maintaining privacy and security, both for individuals and enterprises. She has worked as a journalist and has also penned many technical papers and guides covering various technologies. Smith is herself a self-described privacy and security freak.