Will the nation’s highest court do the right thing and keep our privacy rights in sync with the amazing technology that lets us carry vast troves of personal information in our pockets?
We’ll soon find out when the Supreme Court rules on two cases it heard Tuesday on whether police need warrants to search the cellphones of people they arrest. The justices need to put limits on what authorities can do with smartphones.
The Fourth Amendment’s ban on unreasonable searches and seizures goes back to our founding fathers. The courts long allowed police to search people they arrest without a warrant, to protect officers and to prevent evidence from being destroyed.
But that leeway for law enforcement looks far different today, when what can be found on smartphones is so extensive – records of calls, text messages, Web browsing histories, photos, videos and all sorts of information that the government shouldn’t be able to see without good reason.
Depending on how sweeping the high court’s decisions are this summer, the stakes are enormous. About 12 million people are arrested each year, many for minor offenses and not counting traffic stops. And about 90 percent of Americans have cellphones, and more than half use smartphones that are really miniature computers.
Police groups are lined up on one side, privacy advocates on the other. Based on justices’ questions and comments during oral arguments, some observers believe that the justices may be seeking some middle ground, where warrants would be required for some kinds of cellphone searches.
Lower courts have been divided on whether the old rules should apply to the new, far more powerful devices.
One of the two cases heard Tuesday comes from California. In 2009, David L. Riley was pulled over in San Diego for having an expired car registration. As they had the legal right to do, police searched the car and discovered loaded guns as well as items suggesting gang membership. They also looked at his smartphone and found texts with apparent gang symbols. A deeper search of the phone led to information that linked Riley to a shooting; he was later convicted of attempted murder and sentenced to 15 years to life.
The California Court of Appeal said neither phone search required a warrant, and the state Supreme Court declined to review the case. In California’s brief to the U.S. Supreme Court, Attorney General Kamala Harris and her team of lawyers argue that contact information, video clips and photos on phones are “not different in kind from wallets, address books, personal papers or other items that have long been subject to examination by police.”
Not in kind, perhaps, but the sheer volume and variety of information on smartphones is very different – and our laws need to reflect that.
In the second case before the high court, a federal appeals court threw out the warrantless search of the flip phone of a man arrested in Boston in 2007 for buying crack cocaine. Police used it to link him to guns and more drugs, and he was sentenced to more than 20 years in prison.
In February, a Texas appeals court suppressed evidence found on the phone of a high school student arrested for causing a disturbance on a school bus. “Searching a person’s cellphone is like searching his home desk, computer, bank vault and medicine cabinet all at once,” the court said.
That’s about right – and the Supreme Court must recognize that new reality in the digital age.