In a stunning unanimous decision, the United States Supreme Court ruled against the government finding that police generally need a warrant to search the data contents of a cell phone after they have arrested a suspect.
The decision was important because it recognized, in several ways, how technology can impact the rights of privacy, the impact of searches on those rights, and ultimately the behavior of law enforcement.
The doctrine at issue, called “search incident to a lawful arrest” permitted cops to search the area immediately adjacent to a person under arrest. While searches and seizures generally require both probable cause and a warrant, the Supreme Court recognized that the search incident doctrine was an exception to the warrant requirement – an exception they noted which was used more frequently to conduct searches than warrants were!
While the search incident doctrine has been around for decades, the Court has never really adequately explained why cops can search an arrestee. One justification is for the protection of the police officer – guns, knives, razor blades or other things within the “grabbable reach” of the arrestee could be used to harm the cop, and therefore for protection, the officer may search for weapons – even in things like crumpled up cigarette packages.
If, by happenstance the cop finds a vial of heroin, well it’s just fortuitous. The other justification presented for search incident is to prevent evidence from being destroyed. Betting slips on flash paper, or other transient information can disappear unless it is secured at the scene. A final justification used for search incident is that the arrestee has “no expectation of privacy” as a result of having been arrested. The latter justification being somewhat Meta – the police may search, therefore there is no expectation of privacy, and therefore the police may search.
The Supreme Court recognized that these “exigencies” which permit the search of arrestees have little applicability when it comes to data on cell phones. Sure, cops can still look at the Samsung Galaxy to see that it is, in fact a phone and not some kind of weapon.
But a cell phone and more particularly its contents, pose no genuine threat. The court noted that “Digital data stored on a cell phone cannot itself be used as a weapon to harm an arresting officer or to effectuate the arrestee’s escape.”
Sure, there might be circumstances where the contents of a cell phone could be relevant to protection of the police (e.g., gang member sends text as arrested, “I’m on the corner of 5th and Main being arrested – come down here and help me resist arrest…”) but the Court said that it would consider those cases one at a time.
The court also addressed the government’s concerns that – unless the government was allowed to examine the entire contents of a cell phone of an arrestee without a warrant, the arrestee might “geofence” the device (encrypt or wipe it when it is removed from a specific area) or remotely wipe it.
The Court noted, “Remote wiping can be fully prevented by disconnecting a phone from the network. … law enforcement officers can turn the phone off or remove its battery [or] if they are concerned about encryption or other potential problems, they can leave a phone powered on and place it in an enclosure that isolates the phone from radio waves.” In fact, the Court noted that the problem of “geofencing” was mainly anecdotal.
The Court then went on to recognize what they failed to recognize recently in the United States v. Jones GPS case. The quantity of data impacts the privacy rights. Following a person driving down the street for a day, week or month is fundamentally different than being able to follow a person’s movements forever. Or to follow the movements of everyone. It is a qualitative change. In the cell phone search case, the Supreme Court recognized:
The United States asserts that a search of all data stored on a cell phone is “materially indistinguishable” from searches of these sorts of physical items. That is like saying a ride on horseback is materially indistinguishable from a flight to the moon. Both are ways of getting from point A to point B, but little else justifies lumping them together. Modern cell phones, as a category, implicate privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet, or a purse.
A conclusion that inspecting the contents of an arrestee’s pockets works no substantial additional intrusion on privacy beyond the arrest itself may make sense as applied to physical items, but any extension of that reasoning to digital data has to rest on its own bottom.
Cell phones differ in both a quantitative and a qualitative sense from other objects that might be kept on an arrestee’s person. The term “cell phone” is itself misleading shorthand; many of these devices are in fact minicomputers that also happen to have the capacity to be used as a telephone. They could just as easily be called cameras, video players, rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps, or newspapers.
One of the most notable distinguishing features of modern cell phones is their immense storage capacity. Before cell phones, a search of a person was limited by physical realities and tended as a general matter to constitute only a narrow intrusion on privacy. See Kerr, Foreword: Accounting for Technological Change, 36 Harv. J. L. & Pub. Pol’y 403, 404–405 (2013). Most people cannot lug around every piece of mail they have received for the past several months, every picture they have taken, or every book or article they have read—nor would they have any reason to attempt to do so.
This is perhaps the most impactful part of the Supreme Court’s decision. It may impact the government’s ability to search computers at the border, to seize massive amounts of metadata without a warrant (even possibly from third parties) and to conduct deep data mining. Quantitative changes represent qualitative changes to privacy rights.
The fact is, people DON’T travel around with every piece of correspondence they ever wrote, and with data about every bit of correspondence. To seize such information with neither probable cause nor a warrant is unreasonable. The court quoted Judge Learned Hand who said, “it is “a totally different thing to search a man’s pockets and use against him what they contain, from ransacking his house for everything which may incriminate him.”
In what is likely considered “obiter dicta” – meaning a part of the opinion not strictly required to decide the case which may – or may not – be binding precedent, the Court took an oblique swipe at the so-called “third party” doctrine.
This doctrine is what allowed the NSA to obtain and search everyone’s phone records without a warrant, because the records aren’t YOURS, but are the records of a third party about you – those of the phone company. The third party doctrine remains good law, but bad policy (sometimes). And it’s not clear how the third party doctrine will impact things like cloud computing and privacy. The court did not address the doctrine explicitly, but did note:
To further complicate the scope of the privacy interests at stake, the data a user views on many modern cell phones may not in fact be stored on the device itself. Treating a cell phone as a container whose contents may be searched incident to an arrest is a bit strained as an initial matter. … But the analogy crumbles entirely when a cell phone is used to access data located elsewhere, at the tap of a screen. That is what cell phones, with increasing frequency, are designed to do by taking advantage of “cloud computing.”
Cloud computing is the capacity of Internet-connected devices to display data stored on remote servers rather than on the device itself. Cell phone users often may not know whether particular information is stored on the device or in the cloud, and it generally makes little difference. … Moreover, the same type of data may be stored locally on the device for one user and in the cloud for another.
So you aren’t just “patting down” a suspect when you search his or her cell phone. You may be searching their home, of some other storage facility. Something never contemplated in 1791 when the Bill of Rights was ratified, or when the “search incident” doctrine was established.
But the technology gods have a gift for the cops as well. It’s not that the cops can’t search cell phones. If there’s a specific exigency, they can do it. And if they have probable cause and a warrant they can too. And that’s where technology can help the cops.
The Supreme Court recognized, “[r]ecent technological advances similar to those discussed here have, in addition, made the process of obtaining a warrant itself more efficient. See McNeely, 569 U. S., at ___ (slip op., at 11–12); id., at ___ (ROBERTS, C. J., concurring in part and dissenting in part) (slip op., at 8) (describing jurisdiction where “police officers can e-mail warrant requests to judges’ iPads [and] judges have signed such warrants and e-mailed them back to officers in less than 15 minutes”).” So if the cops are too lazy to spend 15 minutes to get a warrant, why should they be rewarded.
The most significant part of the decision is not the fact that the court has limited searches incident to an arrest. It’s that it has recognized that data – and digital data in particular – is a different kettle of fish than physical objects and must be treated accordingly. And that’s a big deal. A very big deal.