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."