Supreme Court Skeptical of Police Searching Cellphones Without Warrants

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A visitor to the Supreme Court uses his cellphone to take a photo April 29, 2014, in Washington.

Image: AP Photo/Associated Press

By Lorenzo Franceschi-Bicchierai2014-04-29 23:51:52 UTC

The U.S. Supreme Court faced a seemingly simple question on Tuesday: can police officers search through the cellphone of someone they've arrested without obtaining a warrant to do so?

During the arguments on two separate, but very similar, cases, the Justices seemed at least open to the idea of limiting the existing rule, which doesn't require police officers to get a warrant. But they also seemed to struggle to figure out exactly how to give Americans more privacy protections in the digital age.

See also: 7 Landmark Tech Laws Passed in 2013

Privacy and legal experts see the two cases as an unprecedented opportunity for the Supreme Court to weigh in on how new technologies are changing Americans' privacy rights. Here are the most important takeaways from the two cases heard today.

Riley v. California

The first case, Riley v. California, is about an alleged drug dealer, David Riley, arrested in California in 2009 for driving with an expired license plate. The case involved a smartphone, making it the more digitally relevant of the two, since it could set a wider precedent.

Here, the arguments in favor and against this police power were clear.

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  The case for restraining police officers powers: Drawing a distinction between a cellphone and any other object in a suspect's pocket, like of a "billfold of photographs" or a wallet, Riley's lawyer argued that cellphones should have extra legal protections because a cellphone potentially exposes so much more personal information.

  
  


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  The case for the status quo: The lawyers representing the U.S. government argued that police should have the right to rummage through a cellphone because so much of the information contained in it could be relevant to a criminal investigation, and, moreover, it's very easy to wipe out a cellphone remotely.

  
  

Justice Elena Kagan seemed to be the most skeptical of the government's argument, echoing an objection that privacy advocates have repeatedly made in the run-up to the two cases.

"People carry their lives on cellphones," she said, according to the hearing transcript, which could indicate a willingness to agree that the devices deserve special protection.

She added that according to the government's argument — that police should be allowed to search through a cellphone in case of an arrest — police officers could potentially search through personal emails, bank records, GPS data, even in cases where the person has been arrested "for driving without a seat belt," she said, according to the transcript.

Her argument seemed to resonate with other justices. Justice Ruth Bader Ginsburg defined Kagan's scenario as a "very nervous concern." And Justice Antonin Scalia, who often rules against the government in Fourth Amendment cases, later added that "it seems absurd you should be able to search that person’s iPhone" because of an arrest for a minor crime.

During the argument, the justices also seemed eager to establish their geek credentials after being criticized for for their lack of tech savvy in the recent Aereo case.

"Why can't I just put the phone on airplane mode?" asked Justice Sonia Sotomayor, indicating that the mode that prevents the phone from receiving data could also prevent the government's concern that suspects could wipe phones remotely.

Chief Justice John Roberts name-checked apps with little expectation of privacy, like Twitter and Facebook, and asked whether any of this would apply to a Fitbit wristband.

United States v. Wurie

The second case, United States v. Wurie, involved an alleged drug dealer arrested in 2007 in Boston. Police officers were able to find his real home when they saw repeated phone calls from a number labeled "my house" on the screen of his old LG flip phone.

Justice Anthony Kennedy aligned with Kagan, seeming inclined to agree cellphones present new challenges that need new solutions.

"I don't think it's odd to say that we're living in a in a new world," he said, according to the transcript of the hearing. "Someone arrested for a minor crime has their whole existence exposed on this little device."

Justice Samuel Alito seemed to be the most reticent to treat cellphones differently by giving them more protection than other objects that a suspect might have in her possession at the time of arrest.

"How do we determine what the new expectation of privacy is now?," he asked, noting that, before cellphones, people likely had an expectation of privacy regarding other objects in their pockets, like papers, letters, or billfolds of photos — and police officers are allowed to search those.

Most of the discussion in this case, however, revolved around factual matters, and whether a phone with encryption enabled could make it harder for police officers to access the data. In that case, argued Dreeben, the DOJ lawyer, police officers are even more justified in searching upon arrest, otherwise they won't be able to access the data once the phone is locked or turned off.

But Dreeben, as well as the Justices themselves, showed their hand a bit on this point, revealing that no matter how much they drop tech companies' names, they're still not the savviest when it comes to technology.

"Please tell me about encryption," asked Sotomayor at a certain point.

"Apparently, neither you nor I actually have this on their phone, as far as I know," later responded Dreeben, according to the transcript. "So I'm imagining something. Maybe you have it. There is some kind of system that once it goes 'bzzz,' you never can get the stuff again except after eight months, and when this 'bzzz' happens, is it happens at least ten minutes after the arrest and not before, so the policeman would have time to look at it."

Some models of Android and iPhones have a feature that let's users encrypt the content of their phones, but it's entirely unclear if Dreeben's answer to Sotomayor's question was referring to that, or some more complicated, functionality.

Reactions

Experts in attendance during the hearings expect the Justices to end up ruling on some sort of middle-ground rule that might prohibit police officers from going through a cellphone in any case, but preserve their ability to do so under certain circumstances.

"The Justices wished to engage in equilibrium-adjustment," Fourth Amendment expert Orin Kerr wrote in blog post. "That is, they wanted a rule that preserved the balance of government power across the shift from physical evidence to digital evidence."

Yet, like the experts consulted by Mashable, Kerr didn't want to speculate too much.

"This is a case that could go in any direction. I’m guessing the votes eventually go with a middle ground rule," he wrote. "But who knows."

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Topics: 4th amendment, cellphones, Gadgets, law, Mobile, privacy, Supreme Court, U.S., US & World