Cell phone privacy: Justices confront a new world order

The justices of the U.S. Supreme Court — the youngest of whom is 54 — confronted their own technological limits yesterday and struggled with creating new parameters for the right to privacy in a world where a person’s whole life can be documented on a cell phone.Smart_Scotus

The direct issue in the two cases before the court was whether police could search the contents of cellphones without a warrant under the established doctrine of “search incident to arrest.” That doctrine has been justified by courts over the years as necessary to remove weapons that might otherwise be used to harm officers and to seize documents or other types of evidence of a crime that might otherwise be quickly destroyed by the person under arrest.

In one case, Riley v. California, police pulled over a college student for an expired registration. They then learned his license was suspended and decided to impound the car, but searched it first. The officers arrested the student after discovering two handguns, and then searched the contents of his cellphone, on which they found text messages implicating him in gang activity.

In another case, United States v. Wurie, police arrested a driver after seeing him sell crack cocaine from his car. At the police station they took his cash, keys, and two cellphones — one of which was an old flip phone which kept ringing with the display showing “my house.” That house turned out to have an address different from where the driver said he lived and where, after a search, police discovered drugs, cash and guns.

At argument, only Justice Antonin Scalia appeared hewn to precedent.

“Our rule has been that if you carry it on your person, you ought to know it is subject to seizure and examination,” he said.

But other justices had more nuanced questions, demonstrating an appreciation for the trove of information now stored on phones and an acceptance that new parameters for searches allowed under the Fourth Amendment might be necessary.

“We’re living in a new world,” Justice Anthony M. Kennedy said. “Someone arrested for a minor crime has their whole life exposed on this little device.”

“A person can be arrested for driving without a seatbelt,” Justice Elena Kagan added. “And the police could take that phone and could look at every single email that person has written, including work emails, including emails to family members, very intimate communications, could look at all that person’s bank records, could look at all that person’s medical data, could look at that person’s calendar, could look at that person’s GPS.”

Given that, “how do we determine what the new expectation of privacy is?” Justice Samuel Alito asked.

The justices’ questions themselves revealed varying levels of familiarity with their own cellphones.
In an exchange between Justice Stephen Breyer, now 75, and an attorney representing California about data encryption on phones, the attorney said that he didn’t know what type of phone Breyer had.
“I don’t, either, because I can never get into it because of the password,” Breyer replied.

(Image: Wikicommons Photo: Harland Quarrington/MOD is licensed under the Open Government Licence v1.0.)

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