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.