Opinion

Jack Shafer

Cell phone search case is easy call for Supreme Court

By Jack Shafer
April 16, 2014

Now appearing in the Supreme Court docket: Your cell phone.

Later this month, the court will doff their robes and don their scuba gear to dive to the bottomless depths of the Fourth Amendment and determine whether police can search your mobile phone without a warrant, upon arresting you.

As my Reuters colleague Lawrence Hurley reports, the law has permitted police searches of wallets, calendars, address books and diaries at the time of arrest, “primarily to ensure the defendant is not armed and to secure evidence that could otherwise be destroyed.” But two defendants, David Riley in California and Brima Wurie in Massachusetts, maintain that police and prosecutors overstepped those powers when they searched the defendants’ cell phones, and used digital information gleaned, without warrant, to convict them.

The cases pose a question that would have never occurred to the Framers or to nearly all previous members of the Supreme Court, whose idea of evidence was analog. Consider, for example, the size of the personal library of Thomas Jefferson, the most ardent bibliophile of the period in which the Bill of Rights were written. In 1815, the Library of Congress purchased his library of 6,487 volumes after the British torched its collection. That may sound like a lot of books, but it’s pitifully small by modern measures. The 64 gigabyte iPhone in my pocket could hold more than 60,000 text-only books (following Amazon’s rough rule of thumb of 1,500 books per 1.4 gigabytes).

That’s a lot of data, and it includes GPS trails of where I’ve come and gone, voluminous email correspondence, an audit of the websites I’ve visited, gobs of direct messages, photographs, an enormous address book, and hundreds of assorted document files. It also connects to my cloud accounts, where I store even more data.

While my phone is mostly filled with music and audio books, I don’t look forward to the day that, say, a drunk and disorderly arrest exposes all of its contents to a prosecutor because a police officer is looking for additional criminal evidence. My smartphone has become my life’s locker, my attic and basement storage, a portal to my effects, the virtual home that the Framers sought to protect.

Like Jefferson, I don’t want anybody rifling through my books, correspondence, papers, documents and other personal data unless they possess a warrant issued “upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized,” to pinch the text of the Fourth Amendment.

The usual gang of civil libertarians has filed friend-of-the-court briefs with the Supreme Court, decrying the warrantless searches as violations of our Fourth Amendment rights. But even though neither Riley nor Wurie were doing journalism when arrested, a brief filed by 14 news organizations — including the National Press Photographers Association, the New York Times, E.W. Scripps, and Advance Publications — senses the First Amendment implications of warrantless phone searching, correctly noting that the smartphone is one of the journalist’s most indispensable tools.

The brief doesn’t argue for the court to carve out special rights for professional journalists. The advent of such new technologies as mobile phones bestowed upon everybody a greater power to make news, it acknowledges, and it mounts a defense of the acts of making journalism as opposed to a defense of the credentialed. Without strong Fourth Amendment protections, the brief maintains, the First Amendment cannot survive for long.

Without sounding too much like a Wired magazine essay from the 1990s, it’s hard to imagine a First Amendment tool more powerful, portable, affordable and essential than a smartphone. From the brief:

Coverage of breaking news frequently involves contact with police, and journalists have been threatened, arrested, and sometimes charged for doing nothing more than engaging in newsgathering activities. The same has happened to private individuals who use cell phones to record and document newsworthy events, as advanced technology has made citizen reporting more ubiquitous.

It’s impossible to imagine a modern journalist doing his work for long without a smartphone in his pocket or purse. As a text input and text transmission device, it supplants the printing press. Its camera can produce newsreels or documentary images, and thanks to its telephonic powers it can stream live news video to the Web or TV. It’s a digital archive, a data journalism cruncher, and an audio recorder of interviews. It’s the go-anywhere, do-anything tool, used by professionals and non-professionals alike.

For news consumers, the smartphone has become a personal newsstand, a substitute for the post office, and a TV/radio receiver all-in-one. Even though a smartphone user may never shoot a video or write a story on his device, he has a right under the Constitution to speak and read anonymously, a right that is violated by warrantless searches. (Thomas Paine’s “seditious” pamphlets were written under pseudonyms.) The First Amendment also protects the right to receive information and ideas, because without such a right the First Amendment right to publishing is meaningless, and it’s hard to reconcile warrantless searches with free news consumption.

(I leave to you as a homework assignment a treatise on the smartphone’s growing importance to the rights to assembly and to petition the government with grievances, as well its place in our Fifth Amendment protections against self-incrimination. Hint: You’ll find everything you need to complete the assignment in the media’s organizations’ brief.)

Thomas Jefferson and James Madison were more attuned to the link between privacy and freedom of speech than any modern civil libertarian, as the brief notes. The two sometimes corresponded in code so that their thoughts could not be intercepted by foes. If they were writing today, I have no doubts they’d be encrypting their emails and denouncing warrantless searches of cell phones. And the Supreme Court, once they’ve changed back into their priestly garments, should install encryption software on all of their devices, and do the same.

******

Donning his cave diving duds today and going deep is law professor Orin Kerr, with his views on the Fourth Amendment and the cell phone case. Send a change of wardrobe to Shafer.Reuters@gmail.com and dress casual for my Twitter feed. Sign up for email notifications of new Shafer columns (and other occasional announcements). Subscribe to this RSS feed for new Shafer columns.

PHOTOS: People use their smartphones in New York City, in this picture taken November 6, 2013. REUTERS/Shannon Stapleton 

Cell phone cameras catch U.S. President Barack Obama as he delivers remarks at a campaign event at Springfield High School in Ohio, November 2, 2012. REUTERS/Larry Downing 

Comments
10 comments so far | RSS Comments RSS

Phones and their records are effects. Search and seizure of phones is therefore restricted under the 4th Amendment rights of the accused. This is not actually complicated, but police and other government agents will always seek to make it complicated.

Posted by AlkalineState | Report as abusive
 

Let’s assume for the moment that the court says it is ok to search the contents of one’s phone. Anything on your phone would be just like the contents of your wallet. So, you learn to keep things off your phone. Since the computing industry is increasingly moving to a cloud based format I think the bigger question is can they search the contents of the documents that are stored on the cloud? This means documents that are not actually ON your phone but are accessible via your phone by virtue of the fact that your userid and password may be saved on your phone. Take it a step further – what if your documents are cloud based and your userid and password are not saved on your phone but are accessed via a fingerprint identification? Can they force you to supply your fingerprint to open the phone? What if that answer is no. They routinely collect fingerprints during booking. Can they then take that fingerprint photographically and use it to access the cloud based documents? A lot of questions to be answered…

Posted by rocque | Report as abusive
 

If precedent is based on the reasoning of “primarily to ensure the defendant is not armed and to secure evidence that could otherwise be destroyed” then one would hope that the SC would say that police may temporarily confiscate the phone (to ensure evidence is preserved) but may not search its contents unless a warrant is obtained.

Also — great comment rocque.

Posted by Randy549 | Report as abusive
 

Bank password is the new breathalyzer test. Submit to the police or be arrested anyway (for failing to submit to the police).

What are you worried about if you have nothing to hide :)

Posted by AlkalineState | Report as abusive
 

Interesting:

Today Edward Snowden asked Putin if he does or would condone mass spying on all of its citizens — and monitoring and collecting the call they make from their cell phones. Putins answer: “I hope we never fall to that level”.

Yet, the U.S. does it every hour of every day.

So, why do we ignore the massive violation of the 4th amendment and then make a big deal about it on the small, unusual, private level?
… Something stinks here…

Posted by GeorgeBMac | Report as abusive
 

If you lock your phone using a code, the police must apply for a warrant. If you lock your phone using a fingerprint, the police can search your phone by applying your fingerprint to it.

In a quirk of law, your fingerprint is not considered to be private and does not need a warrant to be obtained and used. It’s considered an identifying mark and therefore public.

Therefore, never lock your phone using only a fingerprint. Always use a code as well.

Posted by Burns0011 | Report as abusive
 

“So, you learn to keep things off your phone. ” – rocque

This was my very first thought upon reading this. Forget for a second about the courts. Folks lose phones every day. If you have valuable information on it, that information will be available to anyone who finds/steals it.

I don’t keep important financial or personal information on my computers or phone. It’s the easy, and obvious solution for most of us. For those who absolutely MUST have important information on their phones, I’d follow Burns0011 advice.

Posted by Yashmak | Report as abusive
 

I know that the authors don’t write the headlines, but the article doesn’t actually provide any convincing evidence that this will be an easy case for this Supreme Court. The author gave a lot of reasons why it would be a good thing if the Supreme Court ruled in favor of the defendants and privacy. However, there is no particular reason to believe that this Supreme Court would not be swayed by weak arguments made by law enforcement. In the case about seizing DNA samples, the government arguments were weak and disingenuous. That didn’t stop a majority of the Supreme Court from buying them. Despite a very strong dissent from Justice Scalia.

A realist might well say, this is an easy case for the Supreme Court – just rule for law enforcement on the theory, the government is always right, and if you really wanted privacy, you would encrypt everything and use a code to lock your cell phone. Your failure to take extraordinary measure to protect your privacy means that you don’t have any privacy. And besides, only guilty people need privacy.

Posted by DavidMidwest | Report as abusive
 

@GeorgeBMac
Do you really believe Putin’s answer????

It is as believable as anything coming from Washington DC.

Posted by ArghONaught | Report as abusive
 

I am sure the supreme court will rule for the police state…after all, those with the power over us want things to remain that way.

Posted by akita96th | Report as abusive
 

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