The Case Against Warrantless Cell Phone Snooping by the Cops

In April the U.S. Supreme Court will hear oral arguments in a pair of cases asking whether the police must obtain a warrant before searching the cell phones of people they have under arrest. At The Connecticut Law Tribune, the lawyer who writes under the name Gideon's Trumpet makes the case against giving the cops free rein to snoop:

Think about any random day. You make phone calls, which tells the phone companies where you are and who you're talking to. You send text messages, which stores the content of your conversation. You take pictures, which are stored on your phone. And you download apps that have your bank account and credit card information, maybe even some medical records.

So, if you're arrested—and remember, almost anyone can be arrested; that doesn't mean they're actually guilty of anything—should the police have the authority to simply open your phone and look through every personal email, Twitter update, Facebook status, credit card statement and nude picture? For that matter, should the police have the authority to track your movements without a warrant?

In a recent column on these two cases I posed a similar question: "Should getting arrested for a minor offense like jaywalking be sufficient to allow the police virtually unlimited access to your private affairs in search of additional wrongdoing?" Unhappily, the Obama administration thinks it should. "Although cell phones can contain a great deal of personal information," the administration has argued in a legal filing, "so can many other items that officers have long had authority to search, and the search of a cell phone is no more intrusive than other actions that the police may take once a person has been lawfully arrested."

The problem with that argument is that a cell phone search has the potential to be far more intrusive than any search incident to arrest of your pockets, briefcase, purse, or backpack. That's because, as noted above, cell phones contain not only photos and messages; they also contain GPS tracking data. Thanks to the wonders of technology, our most sensitive and private information—including our whereabouts at various times—is now accessible in the palms of our hands. It's no mystery why law enforcement wants to take a peek. Yet as Gideon's Trumpet observes, "the real reason why police want unfettered access to the phone is precisely the reason why they should not get it."