Courts

Supreme Court Announces Major Victory for Cellphone Privacy

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Credit: C-Span

In a sweeping opinion handed down today, the U.S. Supreme Court ruled that the Fourth Amendment requires law enforcement officials to obtain a warrant before searching the cellphones of individuals they have placed under arrest.

"Modern cell phones are not just another technological convenience," declared the majority opinion of Chief Justice John Roberts in Riley v. California. "With all they contain and all they may reveal, they hold for many Americans 'the privacies of life.' The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought."

In his 28-page opinion, Roberts demolished the pro-law enforcement arguments put forward by the Obama administration and the state of California, both of which advocated in favor of allowing the police to conduct warrantless cellphone searches incident to arrest. Not only are such warrantless searches unnecessary to officer safety, Roberts observed, they are unnecessary to help secure the preservation of evidence. The government's position, he declared, is "flawed and contravenes our general preference to provide clear guidance to law enforcement through categorical rules."

In closing, the chief justice of the United States offered a striking affirmation of the Fourth Amendment's role in American life: "Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple—get a warrant."

The Supreme Court's opinion in Riley v. California is available here.

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  1. WHERE IS THE AEREO ARTICLE?!?

  2. A nice nut massage, thank you, Supremes.

  3. 9-0. Well. Good.

    1. Every once in a while they don’t sicken me. It’s not much but I’ll take what I can get.

    2. Another 9-0 loss by Obama!

    3. It’s just a cock tease.

  4. “Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple?get a warrant.”

    “And, I mean, how hard is that?”

    1. “Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple?get a warrant.”

      Police counter-argument: But we need to see the contents of the phone first to determine if we need a warrant.

      1. They argued that, and roundly lost. The court said that was just about as bad as the “writs of assistance” that sparked the American Revolution.

    2. I know. Police pretend that getting a warrant is some insurmountable bureaucratic obstacle like getting a carry permit in NYC, when it’s just a 10 minute rubber stamp phone call away.

      1. But that’s work!!!

        “Time to get off our fat cop asses and ride.”

      2. Ten minutes is 5 stop-and-frisks lost.

    3. Why can’t that low bar be set for searches of wallets and briefcases then?

  5. While I agree with the Court’s decision, it’s hard for me to see it as a huge victory.

    1. It’s not a loss for the 4th. As such, it’s as huge a victory as we can hope for from the Court nowadays.

    2. Modern cell phones are not just another technological convenience, with all they contain and all they may reveal, they hold for many Americans ‘the privacies of life.

      I’d say having that noted in a majority SCOTUS decision is a big deal.

    3. “My dear, here we must run as fast as we can, just to stay in place.”

    4. I think it’s huge. The court system follows precedent. This establishes a very large precedent that data in such a device is private. This could, in theory, be extended to a number of other venues where we believe we have an expectation of privacy with respect to our data.

  6. There’s a footnote which translates explicitly to “This opinion is not to be regarded as precedent for the NSA cases”

    Because the United States and California agree that these cases involve searches incident to arrest, these cases do not implicate the question whether the collection or inspection of aggregated digital information amounts to a search under other circumstances.

    You bastards.

    1. Well, they do tend to try to make their judgements as narrow as possible. And the NSA stuff, while also awful, perhaps even worse, has a very different (supposed) justification from searches incident to arrest. I’m pretty pleased with the result.

      1. I know, but normally they don’t put the disclaimer out there in virtually plain english not to use this case for another in the pipe.

    2. That statement about the “privacies of life” can carry over to the NSA case when it shows up.

      The basic premise of the third-party doctrine is that information held by third parties isn’t covered by the 4A. Guess what? Every single thing on your cell phone got there by going through a third party, who has records of it. Its a short extension of this case to say that, no, information that is private on one electronic drive is private on any electronic drive.

      We’ll see, but this at least opens the door to reconsidering the third-party doctrine for electronic info.

      1. Third-party doctrine is an abomination.

        There needs to be some Constitutional mechanism for putting activist judges to death.

        1. Third party doctrine makes total sense. AT&T’s records are theirs to give. They’re not yours.

          1. But the extrapolation says “If you want to live in the modern world, you ahve no privacy whatsoever because all your data is shared with some third party or another”.

            1. But it is.

              If you want to make it a law that third-party doctrine goes away, then I’m all about that. But constitutionally the logic is sound.

          2. AT&T’s records are theirs to give. They’re not yours.

            That is only half the story. The other half is that a warrant is not required to obtain AT&T’s records because they’re about me and I somehow gave up any expectation of privacy when I shared them with AT&T.

            Either they’re mine, and a warrant is required to take them from me, or they’re AT&T’s, and a warrant should be required to take them from AT&T.

            Solomon has split the baby, and that is why this “doctrine” is wrong.

            1. You did share them with AT&T. Where do you get an expectation of privacy when you broadcast your records to a massive corporation? If you leave your records with AT&T, then the police can simply subpoena AT&T. you left your records there; that’s your fault.

              1. You did share them with AT&T.

                I did no such thing. We’re not talking about business records here. This isn’t about contracts and statements. Of course those can be subpoenaed if they are relevant to a crime.

                Unconstitutional laws notwithstanding, AT&T is not under any obligation to document the use of its network. If it chooses to do so, then it is the owner of that information.

                Unless AT&T itself is being charged with a crime against the life, liberty, or property of others, it cannot be compelled to surrender its property for the convenience of the courts.

              2. I’m confused by where you’re going.

                I form a company called “Paul’s Cell Phone Service” anad everyone agrees that “Paul’s Cell Phone Service” owns the record, then don’t the police have to provide me a warrant to search Paul’s Cell Phone Service records?

                The way I see it, someone gets served a warrant.

            2. Either they’re mine, and a warrant is required to take them from me, or they’re AT&T’s, and a warrant should be required to take them from AT&T.

              Eggzactly!

          3. AND if I sign a contract with AT&T saying that they will require a warrant before giving said data to the authorities, AT&T is COMPLETELY within their rights to demand one.

            The point is, it is AT&T’s option to demand a warrant for THEIR effects. Being 3rd party doesn’t mean there is an exception to the Constitution.

            1. Well, this is the problem with the BS standard of “privacy” and why we should go back to papers and effects *strictly*.

            2. I liken it more to a safety deposit box. The bank, like AT&T is holding my records in trust. A warrant is required for to search a safety deposit box, and I believe that the same should apply to AT&T.

          4. With respect to private use, I don’t disagree.

            Disclosing to the cops, though, raises some other issues. For example, I don’t see anything in the 4A that refers to papers and effects in your possession.

            I think its a plausible reading to say that the intent of the 4A isn’t just to protect the physical items where information is recorded, but the information itself. It would take some thought, but I think there is something there.

            1. OK, you are in private practice, right? Have you ever subpoenaed anyone? Should you have been required to get a warrant? How?

              1. Tone, there is a difference between a civil action (where two private parties have a dispute) in which I can subpoena someone, and a criminal investigation.

                My ability to subpoena someone in a civil action is not, for example, the topic of any of the Bill of Rights.

          5. You mean like my bank records. My accountant’s records, my medical records, and my lawyer’s file? All ‘theirs to give’?

  7. So the cops will just do it anyway, get a warrant after the fact if they find anything of interest, and then lie about it.

    1. Like the way they always claim to smell booze or pot if they think it might be present. With phones, at least you can password protect access.

      1. “You see, Your Honor, Officer Sparky alerted when he brought the phone near him, so we had reasonable suspicion to believe there to be information about drugs on the phone…”

      2. And also there is no parallel to smelling something suspicious with a phone. The only way to have any idea what is on it is to have looked through it.

        1. And also there is no parallel to smelling something suspicious with a phone.

          Overhearing a phone conversation or seeing the screen while a text message was being displayed would be pretty good analogues.

  8. This is a good example of what the term “living constitution” ought to mean. Living Constitution doesn’t mean the courts are free to just make up rights and interpret the document by popular fashion, which is what sadly most people think it means, especially if doing so involves getting their pony. It means that the court can and should interpret and apply the document to today’s circumstances in the spirit of how the document was intended rather than literally. So yes, the fourth amendment says ” secure in their persons, houses, papers, and effects” but that doesn’t mean literally only papers and effects. If people start carrying around cell phones that are effectively personal diaries and contact books, that phone becomes part of ones “papers and effects”.

    1. It’s pretty obvious that people’s cell phones are the modern equivalent of papers and effects. Most everything in a modern cell phone is what we old fogeys used to keep in a filing cabinet in our house.

      1. Compare it to a home office. You have a Rolodex (phone address book), personal correspondence (text messages), trip itineraries (whatever you mapped last), picture album, home videos, answering machine (voice messages), and so on. It’s literally like a home office in the palm of your hand. To pretend it’s anything else is grossly disingenuous.

      2. I don’t see why we need an equivalent: a cell phone is an “effect”. I agree with the general point, but plain text here supports the decision; no “living” constitution necessary:

        effects: plural noun
        goods; movables; personal property.

        1. Well, it’s an effect that sort of “contains” what we would have considered to be more “traditional” effects. I’m not saying you’re wrong, I’m saying it might be a reason to treat something like a cell phone or computer as a “super effect” or something. Which really probably means squat.

    2. That’s a good way to put it.

      Same thing with free press. “The press” is not just printed material, nor is it just credentialed journalists. It is any means of mass communication. The printing press just happened to be the only one available at the time.

      1. Or bearing arms means more than muskets. Funny how Progs love the living constitution except when it gets in the way.

        1. They have no principles other than might makes right. Since government is might, it is always right.

        2. Hard to blame them, since that’s how soulless, unclean things tend to think.

        3. When the progs say that the 2A is limited to arms that existed in 1791, I like to respond that the 1A must be limited to communication technologies that existed in 1791. I have yet to receive a response.

          1. When the progs say that the 2A is limited to arms that existed in 1791, I like to respond that the 1A must be limited to communication technologies that existed in 1791. I have yet to receive a response.

            They’re still looking for a quill.

          2. I’ve yet to meet a prog who supports the right to a free press. Almost all of them seem to think that the government can and should restrict freedom of the press in the interest of “fairness”, and most of them would agree that the government can and should restrict the freedom of the press if it results in “dangerous speech”.

          3. I’m stealing that.

    3. While I agree with you, Im not sure how a cell phones arent literally “effects”.

      1. Yeah, I think that is pretty obvious. The related question that what John said is more relevant to is what the status of personal information stored on some third party server is. Seems to me that would have to be a modern extension of “papers”.

    4. Just curious. How could a cell phone NOT be literally be considered a person’s effect?

      1. Great minds, FdA and robc. A cell phone IS an effect.

        1. Speaking of too slow, where the fuck is the Aereo article?

          This is a nice 9-0 decision and and all, but the 6-3 one seems more article worthy.

          1. It’s the blowjob before the nut-punch.

      2. Effects has never been interpreted by courts to = personal property.

        1. From dictionary.com

          effects – goods; movables; personal property.

          The court may never have interpreted it that way, but THAT IS WHAT THE WORD FUCKING MEANS.

          1. They have interpreted that way. Bo’s just, again, an annoying law student who probably is failing Con Law right now.

            1. Not all personal property has been held to be an effect. For example, courts found dogs to not be effects even when one could have a tort action for them.

              Of course thus case was not about whether a phone was an effect, but whether it fell under the search incident to arrest exception to the warrant requirement, right Mr Smart Tone Police Law Talking Guy?

              1. Hmmm…is saying that not all personal property is an effect the same thing as saying that effects are personal property?

                No, it is not. God, please tell me where you’re going to practice so I don’t refer anyone to you.

                Of course thus case was not about whether a phone was an effect, but whether it fell under the search incident to arrest exception to the warrant requirement

                lolwut

                You fail law forever. Here, Bo, lemme Socratic this for you: what is the “search incident” exception an exception to? Free hint: read the Fourth Amendment.

                1. So you don’t get the “= ” sign in my original post? Ooookay.

                  1. That has to be the weakest rejoinder ever. Effects ARE personal property, per the plain language of the Constitution and Supreme Court jurisprudence. But not all personal property are effects. So, when you said “the Supreme Court has never ruled effects = personal property”, that was incorrect.

                    1. I believe that the equals sign implies that the two things are the same, not that the first class of things is a subset of the second. So Bo sort of has you there.

                    2. He’ll never admit though, otherwise his arrogant let me tell ya a few things youngster schtick suffers

                    3. I’m slightly older than you. I just find you super fucking annoying.

                    4. So what you’re saying is effects are not personal property? So what are they? Still haven’t heard the answer.

                    5. They are the same. If Bo had written “all”, that would be a conversation worth having, but he didn’t.

                    6. So do you not understand what an = sign symbolizes or is the concept itself giving you the stumbles?

              2. Effects has never been interpreted by courts to = personal property.

                Of course thus case was not about whether a phone was an effect, but whether it fell under the search incident to arrest exception to the warrant requirement, right Mr Smart Tone Police Law Talking Guy?

                Typical.

                Shut down with logic, so you change the argument.

                1. Shut down, as in he now concedes that effects = / = personal property?

                  1. I conceded no such thing, you clown.

                    1. Clowns are creepy…….

                      http://m.youtube.com/watch?fea…..H6b_lSQst0

                  2. Fuck you you impudent little twit. The conversation was about the meaning of the word “effects” all the way back to John’s original comment. That’s what you’re first(ludicrous) comment was about. The meaning of the word effect.

                    It was CLEARLY shown what the word means in english, you were PROVEN COMPLETELY WRONG, so you changed the argument to “search incident to arrest”.

                    This is your MO, as you are a disingenuous child.

                    1. As usual your anger and nastiness are inversely related to your argument. See Zebs point above

                    2. NONE of which changes the ABSOLUTE FACT, that you changed the subject.

                    3. Bo is back in the filter. Fuck this trolling nonsense.

        2. Where do you come up with this?

        3. So a plain english word is meaningless until it’s interpreted by a court?

          Please!

          1. So a plain english word is meaningless until it’s interpreted by a court?

            Well, sort of. There are lots of words with specific legal meanings that don’t necessarily include every definition you will find in dictionaries.

            1. Francis doesn’t recognize such meanings, nor does he recognize Missouri as a state in the union

            2. So I am to assume the Founders were writing using those “specific legal meanings” rather than plain english when they wrote the Constitution?

              This is lawyer bullshit. If it were true that words are meaningless until they are interpreted by a court, then the Constitution isn’t worth the paper it’s written on as the Nazgul can simply redefine all the words to mean anything they wish.

              WRONG!

      3. That is a good question and a long story. It goes back to search incident to arrest. If you are arrested, they have a right to search you for weapons. And if they find say a matchbox from the bar where the murder happened, that matchbox would be admissible as the fruits of a lawful search incident to arrest. It has always been the case that the items on you at the time of your arrest, like say a note or a matchbox were admissible without a warrant.

        Along came cellphones. Back when cellphones just made phone calls, courts considered them and the information on them, like the phone number of the phone or those numbers the cell was used to call, just like the matchbox. In typical police fashion, give them a rope and they think they are a cowboy, when smart phones came along, police used that precedent to go through everything on the smart phone as a search incident to arrest. This case is telling them to stop that.

        1. This case is telling them to stop that.

          So what? They’ll do it anyway and lie about it. Or just do it anyway and not even bother to lie about it. It only matters if a case goes to court. Since most cases end with a plea deal of some sort, it really doesn’t matter.

          1. If the evidence against you gets thrown out, you don’t plea. And evidence rulings come before a trial.

            Regardless, if you don’t think it matters, then don’t comment on the case. I don’t know what to tell you otherwise.

            1. Regardless, if you don’t think it matters, then don’t comment on the case.

              So if I disagree about this being important, then I’m not allowed to say so? Who made you king?

              1. Sure. But you could say “it doesn’t matter because the police will just ignore it” about any case. Police ignoring the courts is a different issue than this case.

              2. You have nothing valuable to add, sarcasmic. Take the hint.

                1. I see Randian has a new handle. Thought I smelled something.

              3. I don’t mean to be flippant sarcasmic. I just mean that if police will ignore it, I can’t argue with you. Maybe the will. I don’t know.

                1. What came to mind was courts repeatedly saying that people can record the cops, yet cops routinely arrest people for doing so.

                  What does a court ruling matter if the cops face no consequences for ignoring it?

                  1. Well then this ruling is a real bummer, ain’t it? We may as well just toss out all those “laws” and go back to the rule of the jungle…or wait, it doesn’t matter because we’re already North Korea…right?

                  2. How do you figure that you aren’t an anarchist, sarc?

                    1. How do you figure that you aren’t an anarchist, sarc?

                      You referring to TP’s masterful slaying of a straw man?

                      No, I’m not an anarchist. I just question getting excited over a ruling that in practice won’t mean shit, since the cops will just ignore it or lie about it, and nothing else will happen.

                    2. You talk just like an anarchist, dude. No law or ruling matters ever.

                    3. TP, when I want your opinion I’ll go wipe my ass.

        2. give them a rope and they think they are a cowboy

          I don’t think that’s quite how Eddie phrased that.

          1. I know. But this is a family website Francisco.

    5. I prefer my constitution to be unliving.

      1. Zombie Constitution FTW!

        1. That would be an undead Constitution.

          1. Isn’t that just splitting hairs?

            1. No, a petrified constitution would be unliving, but not undead.

              1. Agreed. Were it undead, we might have to contend with a critical,document stalking the night eating brains, or drinking blood.

                Hmmmm……..I should write a treatment and pitch it to AMC and HBO.

    6. I think you can take this as a pretty literal application of “effects”, actually.

      1. No. It is a narrowing of the scope of a search incident to arrest. And that makes it a very good thing, since the Court has spent much of the last 50 years using search incident to arrest as a truck for police to drive through the 4th Amendment.

    7. This is a good example of what the term “living constitution” ought to mean.

      English is a very concise language. There’s no need for a living constitution because those words mean exactly what they were intended to mean.

      1. Sure it is a “concise language”. Reality however, is not so concise and situations arise that are not covered by the literal meanings of the words in the document but none the less should be covered by the context and the intended effect of the language.

        1. Reality however, is not so concise and situations arise that are not covered by the literal meanings of the words in the document but none the less should be covered by the context and the intended effect of the language.

          Exactly, and that’s the point of having judges in the first place; not to rewrite the constitution, but to apply it.

          1. I agree. And saying it is a “living document” is really just saying “judges should apply it properly to each case.

      2. There’s one problem with that stance – words do change meaning with time. Just look at the word “Regulated” (Yes, I know is a prefectory statement, but the fact that it’s irrelevent to the meaning of the clause doesn’t change the fact that the word changed meanings in two centuries).

        1. words do change meaning with time.

          Possibly true for single verbs and nouns, but I cannot find an example of pretty much any sentence not conveying the point that was intended in the past milennia. Granted, I haven’t searched very hard.

          1. “It’s a moot point”

            Originally, a moot point was something of such great importance that it deserved discussion at the moot. Now, it’s something rendered insignificant of interest only to academics in esoteric fields.

            And that’s just off the top of my head.

            1. I’d argue against that, because I’m pretty sure that’s just a myth that it was ever used to signify a topic of great importance, since the definition is subject to debate, dispute, or uncertainty, and typically not admitting of a final decision.

              1. Okay, moot can be debated, but the value of a single word, depending upon where that word sits within the structure of a sentence has dramatic impact on the meaning of the rest of the sentence, even if none of the other words have changed meaning.

            2. Con’t.

              Flipping the value of a stragetic word in a sentence can totally invert the meaning of the sentence. And english is rife with such linguisitc inversions.

              “Good enough for government work” is another. When initiated, it was because the contracts insisted on a higher standard. Now it’s “We half-assed it and it sorta functions”

              1. Ok, I’ll agree that idioms can change in their intended meaning.

  9. It’s like a heavenly angel cupping my balls.

    1. Jeeze, Obo’s still in office!
      It’s not THAT good.

      1. Hey, I take what I can get.

  10. Well, they got one right. Yippee.

  11. Oh, and the fact that Progtards support a fuck and his admin that would shill AGAINST having such a ruling – fuck each and every one of them. and the admin. And the Poe Lease.

    That is all.

    1. Prediction: Tony’s going to tell us that the administration argued against it because they had to, but they intentionally half-assed it to get a proper ruling.

      1. I blame Bush

      2. We discussed this (not with Tony, because I dont see his stuff) a while back, where I argued an AG should have to take every case, as his client is the state, so he should defend every state law, but I think I was mocked for it.

        The point is, AG’s dont take every case.

        1. Well, yes and no. I agree in principle but AGs are elected, political animals for a reason, so if public opinion says he should not do it, then maybe he should listen to that. He could always say he never felt the law was constitutional in his own state and it would violate his oath to pursue it.

          1. I think an AG is like a public defender. He has to give the obviously guilty guys the best defense possible.

            I think he should resign rather than defend an unconstitutional law. And hopefully the position goes unfilled, as no lawyer is willing to defend it.

        2. I’d actually agree with you because having laws on the books that are simply not enforced leaves the option on the table when they want something to harass you about. That shit should be argued, lost, and then dropped from the books.

          But in this less than perfect world, that’s not what happened here. California and the Feds wanted to see the contents of your phone because FYTW.

  12. It may not be in the reason drinking rules, but on rare occasions I get to celebrate. I’m drinking for this one.

    1. To be fair, I’d have taken a drink either way.

  13. OT: DC cabbies play their hand at the London Gambit. I’m sure that will work out just as well.

    http://www.washingtonpost.com/…..t-sidecar/

    1. Did they just read that the London Cabbies protested and skip the part about it raising awareness of the cheaper alternatives while making them look like entitled asses, thereby costing them business?

      1. “Hey you guys, what is this ‘Streisand Syndrome?'”

  14. Damn, it’s nice to be wrong sometimes! I figured 5-4 or even 6-3 to screw the IVth.

    Even with the footnotes and weasel-clauses, it’s a good day!

  15. From the opinion, p.22:

    Alternatively, the Government proposes that law enforcement agencies “develop protocols to address” concerns raised by cloud computing. Reply Brief in No. 13-212, pp. 14-15. Probably a good idea, but the Founders did not fight a revolution to gain the right to government agency protocols.

    1. Could have fooled me from the way their prior rulings were written.

      1. True, but now its right there in a decision for every amicus brief to cite.

    2. And if the courts don’t throw out evidence obtained this way, what motive do police agencies have to develop such protocols? That is pretty rich even coming from a government brief. Basically the brief is saying “hey why don’t you agree that this is okay and then just trust us not to abuse it”. That is so blatant and insulting to one’s intelligence that even the court couldn’t buy it. No wonder this was a 9-0 decision. The government basically told the Court to go fuck themselves.

      1. Ahem…

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