SCOTUS Seems Inclined to Limit Police Access to Your Cellphone

During oral arguments today in two cases raising similar privacy issues, the Supreme Court seemed inclined to impose a rule that would limit police access to the cellphones of people they arrest. Under the usual standard for a "search incident to an arrest," police may seize and examine anything they find on an arrestee's person without a warrant. The question for the Court was whether that rule should apply even when the item discovered by police is a portable computer that contains a wealth of personal information, including contacts, calendars, correspondence, journals, photographs, videos, telephone messages, purchases, reading habits, musical tastes, browsing histories, travels, and legal, financial, and medical records. As Justice Elena Kagan put it during oral argument in Riley v. California, "people carry their entire lives on cell phones."

Other justices expressed similar misgivings. "We're living in a ­­ in a new world," said Justice Anthony Kennedy during oral argument in U.S. v. Wurie. "Justice Kagan's questions point out the fact that someone arrested for a minor crime has their whole existence exposed on this little device." Alluding to the fact that the Court has upheld custodial arrests (and strip searches!) for crimes as minor as failing to buckle your seat belt, Justice Antonin Scalia said "it seems absurd that you should be able to search that person's iPhone." Justice Ruth Bader Ginsburg took up the same theme. "Take an offense like failing to buckle up, even driving under the influence," she told California Solicitor General Edward Dumont. "It's your rule...that the cell phone is fair game no matter what the crime, no matter how relatively unimportant the crime....That opens the world to the police."

Justice Sonia Sotomayor emphasized the difference in kind and quantity between the information stored in a cellphone and the information that can be gleaned from items such as wallets and cigarette packages:

Practically speaking, a person can only carry so much on their person. That is different, because...a billfold of photographs is...anywhere from one to five, generally, and not much more. But now we're talking about potentially thousands, because with digital cameras people take endless photos, and it spans their entire life....A GPS can follow people in a way that prior following by police officers in cars didn't permit.

Assuming that the rule for a cellphone should be different from the rule for a wallet, what should the rule be? Scalia suggested a warrantless search might be allowed when police reasonably believe the cellphone contains information related to the crime for which the owner has been arrested. "That will cover the bad cases," he said, "but it won't cover the ...seat belt arrest." Dumont, speaking for the state of California, said "that could be a perfectly reasonable ruling." Jeffrey Fisher, speaking for a defendant who was convicted based partly on evidence from his cellphone, disagreed:

[With] lots of minor crimes, like speeding...DUI, littering, [police] can make a fairly convincing argument sometimes that evidence on the phone would be relevant to that crime of arrest....Take the suspended license. You may have an e­mail from the DMV telling you you better come in and renew. If that opens up every American's entire life to the police department, not just at the scene but later at the station house and downloaded into their computer forever, I think you will fundamentally have changed the nature of privacy that Americans fought for at the founding of the Republic and that we've enjoyed ever since.

Justice Stephen Breyer proposed a different rule, allowing warrantless searches of cellphones only in "exigent circumstances," which would include scenarios involving remotely detonated bombs as well as situations where police reasonably worry that the data on a phone will be erased or become inaccessible if they wait for a warrant. The latter possibility relates to one of the original rationales for warrantless searches of arrestees and their possessions: preventing the destruction of evidence. The government in both cases therefore emphasized the risks of remote data wiping and automatic encryption, although several justices were skeptical that such fears justified proceeding without a warrant. Simple precautions, such as turning off the phone's wireless functions or putting it in signal-blocking bag, can guard against remote wiping. Encryption is relevant only if police seize the phone while it is on and unlocked, in which case they can keep it that way until they get a warrant by disabling the auto lock feature. And if police have the time to take a phone back to the precinct house and examine it at their leisure—as they did in Riley, where the search was not conducted until two hours after the arrest—the fear of imminent evidence destruction hardly seems plausible.

The truth is that Court's rules for arrest-related searches have been needlessly deferential for decades. Preserving evidence and protecting officers from hidden weapons were the two original justifications for making an exception to the warrant requirement. But neither of those goals requires reading detailed information about an arrestee, whether it is stored on a cellphone or in a notebook. Barring far-fetched emergencies, there is no legitimate reason why police, having secured such evidence, cannot go to the trouble of getting a court order authorizing them to examine it. That point is especially clear in the case of cellphones and other portable electronic devices, which routinely contain just the sort of private information the Framers meant to protect when they banned unreasonable searches of people's "papers" and "effects."

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  • Bubba Jones||

    You can't disable the autolock on my corporate cell phone.

    Of course, I'm also required to have a PIN.

    The signal blocking bag seems like a reasonable work around, but then they will also need a signal blocking room to do the search.

  • Austrian Anarchy||

    At least half of the offices I've worked in cover that last point.

  • Paul.||

    The Law Enforcement representative on NPR today reported that warrantless cell phone searches were important because the people they arrest are bad. That was his argument. That was it.

  • Anonymous Coward||

    So all bad people own cell phones? Or all people who own cell phones and are arrested are bad? And what does an arrest have to do with assessing guilt or innocence? People get arrested on humbles all the time.

  • Paul.||

    Or all people who own cell phones and are arrested are bad?

    *ding*

    "It's not at all uncommon now for drug rings, prostitution rings, child-trafficking rings [to have] emails, texts, pictures, all kinds of other important information on the phone that are not only important to solving crime in the long run and making sure the bad guys are convicted, but might be necessary to protect someone right now," says law enforcement advocate John Bursch.

    Note he makes no case as to why they can't or shouldn't get a warrant.

    "Criminal rings have gotten pretty sophisticated about this," Bursch adds, pointing to an investigation in Orange County, Calif., that he says was almost derailed. While the sheriff's department obtained search warrants, the drug ring's members were instructed to immediately wipe all the digital information from their cellphones. And only one phone found in the raid was still intact with its information, according to Bursch.

    See what happened when we bothered to get a warrant? We almost didn't get our man!

    And the money shot:

    As law enforcement sees it, there is no great threat to individual liberties. "You're only going to be in this position if you're arrested for a crime," Bursch says.
  • ||

    This coming from an asshole whose union won't even allow him to be interrogated for a crime for days. These people really do think the rest of us are subhuman.

  • Andrew S.||

    I'm completely against the death penalty, but I'm willing to argue for summary execution for anyone who uses the "If you haven't done anything wrong, you have nothing to worry about" line.

  • Austrian Anarchy||

    Seems folk like him go by the Vincent Bugliosi rule that if you were not bad, you would not have been arrested. Also, your first arrest is not your first infraction, it is just the first time you got caught.

    I suspect there might be a few holes in his logic.

  • Pathogen||

    ".. warrantless cell phone searches were important because the people they arrest are bad..."

    They might very well be "bad", we'll know it for certain if they are convicted of the alleged offence, until that, they are considered innocent.. or so I hear..

  • Aloysious||

    I've thwarted them all. I don't have a cell phone.

  • Sudden||

    "Fucking SCOTUS. Always a day late and dollar short"

    -Donald Sterling

  • Sudden||

    And before you say it, yes I know this has nothing to do with Sterling's issue. I'm just trolling the people sick of that story because that story is a LULZfactory for me.

  • ||

    #boycottclippers #donaldsterling #endstaplescentertraffic

  • Sudden||

    #instagramphotoswithblackpeople #magicandme

  • Austrian Anarchy||

    I, for one, am never attending a Clippers event for the rest of the year, no matter who owns the team.

    Unless they are playing the Bulls in Knoxville and I get free tickets, of course.

  • flye||

    The phone searched in Wurie was a flip phone. Who knows what sort of depraved ascii art he could have been carrying.

  • x4rqcks3f||

    Sotomayor:

    Practically speaking, a person can only carry so much on their person. That is different, because...a billfold of photographs is...anywhere from one to five, generally, and not much more. But now we're talking about potentially thousands, because with digital cameras people take endless photos, and it spans their entire life....

    IOW, rights depend on how high she can count.

  • Sudden||

    Well, she's a wise Latina, so that must be a very high number.

  • Agammamon||

    All the way up to diez!

  • Vampire||

    Roflmao V""V

  • Pathogen||

    "IOW, rights depend on how high she can count."

    If only she had, like.. 20 fingers...

  • Jordan||

    Has nobody informed the Supreme Court that a racist basketball owner said some stupid shit somewhere? Surely, they must weigh in on an issue of such import.

  • Sudden||

    According to my friends on the left, Clarence Thomas feels the exact same way about black people as Donald Sterling.

  • flye||

    According to Donald Sterling, Clarence Thomas is called Toby.

  • Agammamon||

    My. Name. Is. Kunta Kinte!

  • Pathogen||

    Don't sugarcoat it man..

  • Francisco d'Anconia||

    But Clarence Thomas is bleck.

  • ||

    Thomas is going to disappoint me on this, isn't he.

  • Jordan||

    ^Look at this guy with his last shred of optimism. I remember those days.

  • Pathogen||

    Apparently, virtually nothing you possess should be construed as "papers and effects" that are reasonably entitled to be secure... if only they could pull some other 'rational basis' test out of their collective asses. Hmmm.. reasonable basis? Rational expectation of seizure? Reasonable privacy? Oh well... we'll flesh it out some other time...

  • flye||

    JUSTICE KAGAN: Mr. Dumont, is ­­-- are you saying, essentially, that nobody has any expectation of privacy, or that somebody has a dramatically reduced expectation of privacy in anything that the person actually wants to keep on them at all times? In other words, one has to keep one's cell phone at home to have an expectation of privacy in it?

    Yes. That is exactly what they are saying.

  • Agammamon||

    How about a rule that police can search (without a warrant), incident to arrest, the individual and his immediate surroundings for things that *are a danger to the officers* and only that?

    The stuff he's carrying can be confiscated and held, pending a warrant for a search (still including probable cause beyond 'we arrested the guy') or his release.

    You don't get to fumble through his wallet, just take it and bag it until you get a warrant. Empty his pockets and put them in a bag. If you see what looks like a bag of pot, then get a warrant for fucking chemical testing of the substance.

    Oh, and once the guy is in handcuffs you don't then get to go back and rifle through his cabinets or glove box. That stuff is no longer within his reach and can pose no threat to the officer.

  • Agammamon||

    Personally, I do not consider preserving evidence a good rationale for these rules.

    Let's face it - if you have time immediately prior to or during an arrest to dump evidence then its not likely to have been much of a crime anyway.

  • Surly Chef||

    Stop trying to apply simple common sense rules to this mystifying "4th amendment". It was written like 100 years ago.

  • Freedom Frog||

    OT: Let's Go Rangers!

  • Andrew S.||

    OT: You suck.

  • Freedom Frog||

    Lol. Don't worry, they haven't won a series in less than 7 games in 5 years. I'm sure they'll blow this opportunity.

  • Irish||

    The Nation: Hilariously awful at history and/or math.

    In the United States, campaigns for social justice are always “a racial thing.” That doesn’t mean they might not be about other “things,” too. Indeed, they invariably are. Race does not exist in a vacuum. But in a country that has never considered equality beyond its most abstract iterations and that has practiced slavery far longer than freedom, race is never entirely absent.

    By my count, even if you consider America as having been 'founded' with the Declaration of Independence, we had slavery for approximately 90 years. We've had no slavery for 140 years.

    What is The Nation talking about?

    The rest of the article is pretty fucking stupid too.

  • Bo Cara Esq.||

    Maybe they were thinking from 1609?

  • Irish||

    That was my immediate thought. In which case, they should really be bitching at the British for having slaves from 1609 to 1776, don't you think?

    Plus, they said 'country.' America was not a country in that time period, so they either suck at math or they suck at the English language.

  • Andrew S.||

    Por que no los dos?

  • ||

    The other thing about the slavery argument that annoys me when people bitch about the US is that pretty much EVERY SINGLE MAJOR NATION STATE dabbled in slavery at some point, some even still do. Our country fought a fucking war over it until we settled the question that the Constitution meant what it said about each person being equal regardless.

    I don't remember China having a civil war of the slave trade, did I miss something?

  • Irish||

    France only abolished slavery 17 years before America did, but for some reason everything the French do is not colored by the horrors of their racist past.

  • Bo Cara Esq.||

    In France the racist past of France, in Haiti, Algeria, etc., is talked about all the time.

  • Smilin' Joe Fission||

    Come on Bo.. you're being disingenuous if you are trying to say France is in any way criticized for past slavery like the US is.

  • Bo Cara Esq.||

    Have you been to France or talked to many French persons? If you do not think they go over their racist failings as much as we do here you are far mistaken.

  • Redmanfms||

    Come on Bo.. you're being disingenuous if you are trying to say France is in any way criticized for past slavery like the US is.

    He's also flat out lying. There are no such public discussions.

    France continues to have an extremely racist foreign policy in Central Africa.

    Have you been to France or talked to many French persons? If you do not think they go over their racist failings as much as we do here you are far mistaken.

    You've very clearly never been to France.

    I used to live there, my mother still does. They do not dwell on their past racism, (actually, they usually refuse to acknowledge it altogether). The only racism angle that gets any criticism is that against Arabs/Muslims, and even then it isn't the subject of constant concern troll hand-wringing that racism/slavery is in the US.

    The reporting of the Merah rampage in mainstream French newspapers has been pretty openly hostile to Arabs.

    Either way, you conveniently and completely dodged his statement, as per your SOP.

  • Paul.||

    I thought the French were mostly concerned about Disney 'occupying' their culture?

  • Swiss Servator ...nichts||

    Nicely done - that was an epic takedown.

  • Bo Cara Esq.||

    "The other thing about the slavery argument that annoys me when people bitch about the US is that pretty much EVERY SINGLE MAJOR NATION STATE dabbled in slavery at some point, some even still do."

    Well, we do argue we are exceptional, had a foundational document about equality and liberty, and only fought that war long after many other nations had already got rid of it, so there is that.

  • ||

    only fought that war long after many other nations had already got rid of it

    17 years is that long?

  • Bo Cara Esq.||

    Good thing I said 'many' and not 'all.'

    And that 17 years refers to their colonies, correct?

  • Irish||

    Bo, when the left uses these arguments, the only goal is to delegitimize the idea of a free society.

    They're essentially trying to tie all free market and pro-freedom values to slavery, which is ludicrous on its face. Especially given that ALL of the earliest abolitionists were some form of enlightenment/free market thinker, such as Lord Acton.

  • Bo Cara Esq.||

    Perhaps that is how they use them, and if so it is silly. But as libertarians we should recognize the real stain on the aspiration of liberty in our history left by the fact that these people who espoused liberty sanctioned a slavery far greater than any we face today.

  • Redmanfms||

    But as libertarians

    Full stop.

    You aren't a libertarian Bulpa. Now fuck off.

  • Winston||

    Lenin claimed that capitalist freedom is the same freedom in ancient Greece, that is for slave owners.

  • Winston||

    Do people claim that France is hypocritical for the Rights of Man and such for having slavery in its colonies until 1848 and for having all male suffrage until 1946?

  • Bo Cara Esq.||

    In France they do. Like I said, in France they point to the failings as late as Algeria.

  • Calidissident||

    It's fair to point out how the US isn't some gross exception to historical norms in that regard, but at the same time, but should it be surprising that in the US, past American shortcomings and atrocities get more attention than Chinese or French ones?

  • trshmnster the terrible||

    It's really quite simple, but they'd never admit it. If they were to point out the Chinese and French atrocities, they would be ad hom'ing their ideological roots. They don't want to attack Mao or the French Revolution because they are ideological descendants of them.

  • Calidissident||

    I'm not just talking about left-wing magazines, but about our broader culture. And the person who mentioned the French initially was talking about slavery, not the revolution.

  • trshmnster the terrible||

    It's really quite simple, but they'd never admit it. If they were to point out the Chinese and French atrocities, they would be ad hom'ing their ideological roots. They don't want to attack Mao or the French Revolution because they are ideological descendants of them.

  • Bo Cara Esq.||

    Yeah, I just googled 'country' and the definition was a land under its own government, which would not have been the colonies.

    But the colonies that became the US had slavery, and as odd as they put it it seems equally odd to say '1609-1776, England's bad, 1776-1866, US's bad.' I mean, if we see the colonists as our 'forefathers' in any meaningful way.

  • ||

    It's the Nation. Boot lickers gotta lick.

  • ||

    Self-hatred is a pathetic thing. It also leads to bootlicking.

    What must it be like to be one of these projecting, self-hating, everything is political assholes? They must be absolutely miserable. Which is something I would just laugh at, except they are doing everything they can to make us all as miserable as them.

  • Pathogen||

    You're blinded by privilege, just shut up and feel guilty...

  • Notorious G.K.C.||

    According to Wikipedia, the Nation was founded in 1865 as a classical liberal organ, but in 1918 it switched to progressive. Since then it's been virtually all flavors of progressive, including pinko.

    In conclusion, the National has preached slavery longer than it has preached freedom.

  • Winston||

    We've had no slavery for 140 years.

    What happened in 1874?

  • Winston||

    The first African slaves were imported in 1619 by the way. And slavery wasn't codified until 1654.

  • Irish||

    Which has to do with an American country that didn't yet exist because

  • Winston||

    Well it means BO is wrong.

  • Bo Cara Esq.||

    So Americans should not be proud or particularly interested in colonial figures?

  • Winston||

    What are you talking about?

  • Bo Cara Esq.||

    "But the colonies that became the US had slavery, and as odd as they put it it seems equally odd to say '1609-1776, England's bad, 1776-1866, US's bad.' I mean, if we see the colonists as our 'forefathers' in any meaningful way."

  • Winston||

    They don't call you Blue Tulpa for nothing.

  • Calidissident||

    If that was the point the Nation was making, they shouldn't have used the word "country."

  • Sudden||

    and that has practiced slavery far longer than freedom,

    Wait, we practiced freedom?

  • Irish||

    Wait!
    According to NPR, we still have 60,000 slaves!

    I take it back. The nation was right.

  • Irish||

    Also, NPR comments are golden:

    Dick Johnson Bill Gates • 6 months ago
    Whom do you think taught these, now capitalistic countries, the system for becoming a super power? They're just following the US system. Do you think the US would have become a super power without two hundred years of enslaving people? The US learned from it's European forefathers.

    When our grandparents and great grandparents were children, the US was doing the same thing and the British and French were questioning our moral and ethics.

    Yes, clearly slavery was completely alien to the fucking Congo before Americans introduced it. There had never been slavery in Africa before mean old America taught them about it!

    History book, bitch. Do you read them?

    I also like that he says the U.S. wouldn't have become a superpower without slavery. The South was far poorer than the North throughout pretty much all of American history. If slavery results in wealth and power, then why were the parts of America without slaves richer and more industrialized than the places with them?

  • Irish||

    Ramesh kumar • 6 months ago
    There are plenty of illegal immigrants in US who slave for just one employer. Not sure whether stats included this scenario.
    Also the definition of slavery is grayish, just speak to legal immigrant workers before they land Green card.

    Do they give out free lobotomies to NPR commenters?

  • ||

    Rome called, it wants its reputation back.

    It is absolutely astounding how people like this guy who are so fucking ignorant of, well, everything, can walk around smugly thinking that they're incredibly smart and well educated. What level of self-deception does that require? How do you get so detached from reality?

  • Smilin' Joe Fission||

    Only talking with people who think exactly like you. Group think elevates these people to their smug status.

  • Irish||

    Dick Johnson • 6 months ago
    Americans have the shortest memories of any humans. Less than 100 years ago, this is what the US was doing. How do you think we got rich?

    Yet more problems with math. I'm pretty sure there was no slavery less than 100 years ago in America. Man, it would sure take a massive moron to say something as dumb as tha...

    Eric Dondero Dick Johnson • 6 months ago
    We have slavery today in the United States. It's called the income tax. Some Americans are taxed more than 50% of their incomes. The survey takers chose not to include that in their report, unfortunately.

    A real survey would include levels of taxation as equal to a form of slavery.

    DOOOONDEROOOOOOOOOOO!

  • Francisco d'Anconia||

    That never gets old.

  • Agammamon||

    Slaves saved or created.

  • ||

    I'm almost sure you have heard of it, but just in case you haven't: linky

  • Calidissident||

    Eliminating slavery from American history opens up a gigantic counterfactual, and it's impossible to predict how things would have turned out. That said, we were not a superpower when we abolished slavery, and became one decades later.

  • Irish||

    Media Matters fights to stop their workers from unionizing.

    This guy wins:

    Andrew Stiles ✔ @AndrewStilesUSA
    Follow
    In fairness to @mmfa, a unionized staff would make them less efficient at exposing wingnut lies about why unions make things less efficient.
  • Bo Cara Esq.||

    "Media Matters fights to stop their workers from unionizing."

    Wow, that is a pretty shining double standard there.

  • Pathogen||

    BANNED...

  • Paul.||

    I like that Andrew Stiles guy. He's got a Biden 2016! avatar.

  • Notorious G.K.C.||

    "Donald Sterling Is a Blight on Jews’ History in Basketball...

    "It’s sad for all the obvious reasons, but it’s also sad because basketball and the National Basketball Association have historically been a concentrated locus of Jewish-black exchange, and even solidarity."

    http://www.newrepublic.com/art.....ce=twitter

  • Bo Cara Esq.||

    "When Men Are Raped

    A new study reveals that men are often the victims of sexual assault, and women are often the perpetrators."

    http://www.slate.com/articles/.....ulted.html

  • GILMORE||

    I (temporarily) lost my first android phone a while back, and wasn't concerned until I realized that unlike regular old devices, that thing sync'ed everything Google to the device - making it a one-stop shop for all my email, contacts, various services that enabled access to financial account-information, and on and on and on... it was simply a 'key' that unlocked tons of 'internet-stored' data.

    My point being - the phone wasn't something that simply 'stored' a limited number of items; it was a conduit to access an almost unlimited amount of stuff.

    So = considering this new(er) aspect of what the technology represents, "Lawyer-Me" would argue that this is like finding a Key-Ring in a person's pocket. Can police seize the key-ring if they arrest you. I assume so. Are the also by default granted the right to search the things those keys unlock? I don't think they are, and I think existing law covering this sort of thing should be considered to apply; rather than the 'examining someone's wallet' analogy which has been used to-date.

    just a thought.

  • Paul.||

    At some point there's going to be a significant case about searching data ON your computer (phone), vs searching stuff your computer is connected to.

  • Vampire||

    Anyone forced to work for the benefit of another is not free, but is a slave. Slavery was never abolished. The politicians just found some slick....well to folks like the NPR commenter Ramesh kumar, ways of enslaving individuals.

    Folks like that just lie to themselves and crawl around licking the boots of their masters. They feel "top men" need to extort them and tell them what is and isn't good for them. They worry about some nonsense news, instead of grasping basic economics. They know every sports team, but can't even remember the definitions of freedom and liberty.

    Sadly, they subject other individuals, that desire to be free, to force, theft and coercion. Yet these giant meows don't aggress against free individuals, but hide behind the politicians who hide behind the police state.

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