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."

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  1. …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.

    We’re already pounding you in the ass, so what’s another inch?

    1. But it’s already up in so far I can feel it gagging at my uvula.

  2. Just to be clear, if your phone is passworded can police compel you to fork over the password? Or (since I’m sure the usual password protection on phones is pretty flimsy) are they free to get around it altogether? I’m guessing they’re allowed to unlock compartments or bags their arrestees have inconveniently locked them out of.

    1. I love From The Tundra’s self-destruct password app idea, below.

  3. Every bit of personal records of mine I keep in a huge locked filing cabinet, my daughter keeps hers on her cell phone. I have never once gone any where carrying my filing cabinet. Sure the police could search my filing cabinet, but they’d need a damn warrant. And cell phone searches absolutely should require a warrant as well.

  4. The intrusiveness is only part of the issue. Reasons for searching a person are clear and justifiable: does this person have a weapon or other contraband that would make putting them in the back of a patrol car or in a jail cell problematic? But what could be on a cell phone that’s equivalent? Maybe the phone itself could be temporarily confiscated, but the contents of the phone pose no threat that justifies a warrantless search.

    1. Just so.

  5. “no more intrusive than other actions”


    They’re just blatantly lying to us now. Not even an attempt at subterfuge. As others, much more knowledgeable than me, have stated here before: we are doooooooooooomed.

  6. The Case Against Warrantless Cell Phone Snooping by the Cops

    I believe this already exists:

    The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

  7. Wow man those guys seem to know whats tup./


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