https://www.accessnow.org:443/us-supreme-court-acknowledges-cell-phone-privacy-concerns/

U.S. Supreme Court acknowledges cell phone privacy concerns

Yesterday, the Supreme Court announced its decision in two cases, Riley v. California and U.S. v. Wurie, holding, “a warrant is generally required before a search” of information on a cell phone can occur. The ruling embraces the substantial privacy concerns inherent in the search of a modern mobile phone, which is often equivalent, as the Court says, to a mini-computer. This decision will likely further be seen as an important precedent when it comes to searches of other electronic devices like laptops or tablets.

To determine whether to exempt a type of search from the warrant requirement, the court generally weighs ”the degree to which it intrudes upon an individual’s privacy” and “the degree to which it is needed for the promotion of legitimate governmental interests.” The Court found both a lack of legitimate governmental interest and an unprecedented degree of intrusion upon an individual’s privacy when searching the contents of a cell phone. Access welcomes the court’s decision to recognize and defend the substantial privacy rights that are at stake in this kind of search.

Background
In Riley, an officer conducted a search on the defendant Riley “incident to arrest,” meaning Riley had already been placed under arrest at the time of the search, but no warrant was issued and no formal charges had yet been filed. During the search, the officer seized a cell phone from Riley’s pants pocket. The officer then accessed information on the phone. The results of the search were used to justify a further investigation into the contents of the cell phone later at the police station.

In Wurie, the respondent was arrested after police observed him participating in an apparent drug sale. Police officers seized a cell phone from Wurie’s person and inspected its call log after the phone received multiple calls. Both defendants moved to suppress evidence obtained from these warrantless searches of the contents of their cell phone.

Privacy Concerns
On Wednesday, the court embraced the connection between the modern mobile device and our personal and private lives. The government attempted to compare the search of a cell phone to that of billfolds, address books, wallets, and purses. Chief Justice Roberts, writing for the majority, responded that, “this is like saying a ride on horseback is materially indistinguishable from a flight to the moon.”

The Court noted both qualitative and quantitative differences between what can be found on a cell phone and on other common items found on a person. A modern cell phone is able to store millions of pages of text, thousands of pictures, and hundreds of movies. It is able to function as a camera, video player, album, map, newspaper, and anything else someone makes an app for.

The inspection of something like internet and browsing history is able to reveal individual information that is qualitatively different and much more intrusive than is possible from other sources. Further, many cell phones attach to even greater amounts of information in the cloud. As the Court noted, “cell phone users often may not know whether particular information is stored on the device or in the cloud, and it generally makes little difference.”

The court found that while an arrestee may have diminished privacy interests, the Fourth Amendment still applies. Specifically, “when privacy related concerns are weighty enough, a search may require a warrant, notwithstanding the diminished expectations of privacy of the arrestee.” The Court’s determination that the search of a cell phone is undeniably weighty enough to require a warrant is a step in the right direction for protecting privacy rights.

Governmental Interests
In the United States, a warrantless search is not permissible unless there is an exception to one’s Fourth Amendment rights. However, there is a well-established exception for warrantless searches conducted after a lawful arrest. In Chimel v. California, the court notes that this exception is justified by the furthering of government interests, including destruction of evidence and police safety. In this ruling, the Court found that a search of a cell phone incident to arrest does not fall under this exception. However, even in cases where the Court finds that such a governmental interest does exist, language in the opinion recognizes that the invasive nature of a search of a cell phone still may not be justified.

The court’s ruling also recognized that a cell phone is different from other searcheable objects, such as a potentially-dangerous physical container. While some physical objects encountered during an arrest (such as a cigarette package) may pose risks, digital data does not pose a risk to officer safety. The Court also swept away concerns about destruction of evidence, noting that, aside from a few anecdotal situations, there is no indication that this practice is particularly prevalent. Further, the Court noted that police officers already have easy and affordable ways to combat this practice by removing the battery of the phone or placing it within a widely available and affordable faraday bag. The Court left open the possibility that the exigent circumstances exception, which is a flexible standard usually decided by courts on a case-by-case basis, could be used for more egregious cases.

Conclusion
This decision is a step in the right direction for a Court that has otherwise wrestled with issues of technology: it affirms that modern cellphones are more than a mere convenience, for many containing unprecedented amounts of private information. Chief Justice Roberts put it best stating, “The fact that technology now allows an individual to carry such info in his hand does not make the info any less worthy of protection for which the Founders fought.” He concluded, “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.”

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