Warrantless Cellphone Searches by Police Should Be Unconstitutional


Warrantless Cellphone Searches

Earlier this week, Gary Shapiro, CEO of the Consumer Electronics Association, had an op/ed in the Washington Post delving into the question of whether or not the police can search for data on your cellphone without a warrant. The specific case is United States v. Wurie in which the police scrolled through the recent calls on a suspected drug dealer's flip phone to figure out where his house was located. The house was raided, drugs were found, and now the defendant is claiming that the search of his phone violated his Fourth Amendment privacy right against unreasonable search and seizure. The case is now before the Supreme Court.

Shapiro accepts that police scrolling through a flip phone's call list is like checking an address book or diary found on a suspect, which earlier courts have ruled permissible without a warrant. Smartphones are different. Shapiro writes: 

Today's smartphones and tablets are computers and hold vast amounts of personal information — not just contacts and text messages but also photographs, videos, e-mails, social media accounts, banking information and more. And tablets and smartphones will only become more innovative. Today, 66 percent of online U.S. adults own such a device, according to an August survey by the Consumer Electronics Association.

The questions that courts should be thinking about include: What if the confiscated phone is a password-protected smartphone? What if it is a tablet requiring biometric access? Can police try to recover the password or force the biometric key to access confidential information as part of an arrest?

When a person takes the precaution of using a password or biometrics to limit access, it's clear that person expects his or her information to remain private. With smartphones and tablets storing greater and more sensitive data than older mobile phones can, it is reasonable to expect greater privacy. Violating that expectation of privacy without a warrant clearly contradicts the Fourth Amendment. Granted, it may be appropriate to do so in an exigency, such as a life-threatening situation — but any information thus obtained could not be used as evidence in a court of law.

I am no constitutional scholar, but I would think that if someone goes to the trouble of password protecting or encrypting their cell phones, tablets, or computers, that suggests, ipso facto, that he expects privacy. Nevertheless, the brave defenders of our borders—Homeland Security goons—insist that they have the right to warrantless searches of our phones and computers.