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A Major Victory for Privacy Rights in a High-Tech Ruling From a Low-Tech Court

In a unanimous decision that went far further than most anticipated, the Supreme Court ruled that law enforcement officers must obtain a warrant before searching a cell phone—even after arresting its owner.
Supreme Court building in Washington, D.C. (Photo: Orhan Cam/Shutterstock)

Supreme Court building in Washington, D.C. (Photo: Orhan Cam/Shutterstock)

The Supreme Court delivered a surprisingly forward-looking tech decision Wednesday morning. The question before the Justices was whether law enforcement officers must get a warrant after arresting someone carrying a cell phone before searching the phone. The Court answered unanimously in the affirmative.

The vehicle for the question was a pair of cases, Riley v. California and United States v. Wurie. In the first, a California case, police searched a man’s cell phone after pulling him over for driving with an expired registration and then used what they found to connect him to—and convict him for—a gang-perpetrated drive-by-shooting. The second case, which began in Massachusetts, arose after police conducted a limited search—just a few buttons were pushed—of an arrestee’s clamshell-style cell phone that led them to an address where he’d stashed both cash and drugs.

It seems the question of what police must do before searching cell phones, invented in 1973, couldn’t be new. But it was—for the Supreme Court. Historically, the law and the Court both have said officers can search anything someone is carrying on them so long as the arrest is legal. This past case law, however, deals with physical searches—like opening a cigarette packet to find heroin capsules or looking through datebooks—not digital searches spanning gigabytes upon gigabytes of data and history.

"Modern cell phones are not just another technological convenience," Chief Justice John Roberts writes. Rather, "with all they contain and all they may reveal, they hold for many Americans" what the Supreme Court has called "the privacies of life."

Law enforcement and its allies offered a number of compelling arguments for extending the so-called “container” standard to cell phones—a cell phone, many said, is just another kind of container, like a packet of cigarettes or a clutch, and it should be treated as such. It’s critical that police be able to search these devices immediately upon arrest because they may be part of ongoing, related crimes or could have been used to call for aid from confederates or commission other crimes, they argued. Plus, remote wiping options mean that if a phone isn’t searched right away police may never get the chance at all. These are good reasons to allow law enforcement to search phones; they’re the same reasons law enforcement can go so far as to search someone's car if they're arrested while driving or in the car.

Yet a cell phone carries so, so much more information than a purse, a diary, or even a car—more information than even the largest of SUVs piled full of documents. And, unlike a car, which is not likely to contain more than a relatively small amount of information, a smartphone is all but guaranteed to hold a significant amount of data about your day-to-day life—from the absolutely mundane to the eye-wateringly intimate. There's no precedent for that kind of intrusion being justified as a function of a lawful arrest. Moreover, if it is indeed a lawful arrest, it shouldn't be difficult to obtain a warrant.

But this Court has struggled with some high-tech or science-intensive cases and topics in the past. The underlying question for those trying to game out the Court’s decision was just how well its members could understand how much of one’s life may be scrutinized via cell phone in practice. No doubt several Justices have an iPhone or a BlackBerry, but it seems fair to assume that the way someone over the age of 65 uses a smartphone typically differs substantially from the way in which, say, a Millennial does—and Justice Ruth Bader Ginsburg is 81 years old; Scalia, 78; Kennedy, 77; Breyer, 75; and Thomas, 66. (Consider Facebook, Instagram, OKCupid, or Grindr for starters.)

Fortunately, the Court nailed it. The Justices appear to have gone to great lengths to ensure that they had a full understanding of smartphone technology—and, more importantly, the way people use it. The painstaking research was apparent, occasionally humorously so. In his statement from the bench, and in the opinion, for example, the Chief Justice mentions the average number of apps a smartphone user has installed on a phone. (It’s 33.) Among other sources, Roberts cites the iPhone User Guide for iOS 7.1 Software 10.

The Court’s decision focuses on the quantity and variety of information that can be gathered by searching a cell phone. They agreed that the information a cell phone holds can’t be compared to the types of non-digital, physical data that police might find while searching someone incident to arrest, like “a photograph or two of loved ones tucked into a wallet.” That’s because a cell phone can contain “many distinct types of information.” Some of the examples offered: “an address, a note, a prescription, a bank statement, a video.” These various snippets of information—plus data about app usage and call records, or a photo library with dates and times—provide enough information for “an individual’s private life” to be “reconstructed.”

Roberts waxes geek-poetic. “Modern cell phones are not just another technological convenience,” he writes. Rather, “with all they contain and all they may reveal, they hold for many Americans” what the Supreme Court has called “the privacies of life.” That means that “[t]he fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought.”

Put simply, the Court decided that an individual’s interest in keeping the contents of her smartphone private significantly outweighs law enforcement’s interest in having perma-permission to search all cell phones found on arrestees without getting a warrant. Data can be destroyed remotely, Roberts concedes, but better to place the burden of arriving at a solution on law enforcement than to violate individuals’ privacy. He notes that the Court’s ruling leaves “case-specific exceptions” intact: Where there’s a reason to fear delay would be deleterious, law enforcement can use the exigent circumstances exception to the warrant requirement. That means this decision is more a win for privacy rights than a loss for law enforcement.

This was the ruling liberals hoped for, with the kind of rhetoric conservatives love. Roberts’ full argument on the topic of Fourth Amendment rights can be summarized as, “We fought a war over that, you know.” He writes that the Supreme Court has previously “recognized that the Fourth Amendment was the founding generation’s response to the reviled ‘general warrants’ and ‘writs of assistance’ of the colonial era,” which let British soldiers conduct “unrestrained search[es] for evidence of criminal activity.” “Opposition to such searches,” Roberts writes, became “one of the driving forces behind the Revolution itself.” He even quotes John Adams.

What’s most surprising about the decision isn’t the outcome or even the 9-0 vote—it’s how far the Court went in protecting privacy rights. Many anticipated a stopgap solution or compromise; instead, the Court set a rule that can endure technological updates and advances into the foreseeable future. And, indeed, at least eight members of the Court seem content to let this be the rule indefinitely. Justice Samuel Alito was alone in noting that he thought the Court might need to “reconsider ... if either Congress or state legislatures” manage to “enact legislation that draws reasonable distinctions based on categories of information or perhaps other variables.”