On April 29, the United States Supreme Court will hear oral argument on a case involving the right of the police to search the contents of a cell phone which is in the “grabbable reach” of a person they have arrested.

The government makes several arguments in support of its assertion that it may copy, search and use any of the contents of the phone seized without probable cause and without a warrant.

This includes the assertion that people simply have a “lower expectation of privacy” by virtue of having been arrested, the fact that data on a cell phone can be remotely wiped and therefore must be examined by the police, and the fact that evidence on the phone may be essential for the police to learn that other “bad guys” are coming, and therefore to protect the police.

But one unusual assertion by the government has profound implications for the future of privacy.  The government asserts that, if information has a lowered expectation of privacy in one location for one reason, it has a lowered expectation of privacy all the time.

In the cell phone seizure case, the government argued that it could search the entire contents of the phone “incident to a lawful arrest.”  But in particular, the government argued that  (page 55-56) cops should be permitted to seize cell phones without a warrant and without probable cause and at least look at cell phone meta data because people have no “reasonable expectation of privacy” in that data.

Here’s the argument.  When you “share” your data with the phone company (well, you don’t really share it with them, they collect it whether you want them to or not) you know that they could give that data to the police.

Because you know they can give it to the police, you don’t have a “reasonable expectation of privacy” in that data. Because you don’t have a reasonable expectation of privacy in that data, the government doesn’t need a warrant to get the data. Because the government doesn’t need a warrant to get that data, it can get it from your cell phone without a warrant.

It’s not the first time the government has used a similar argument.  When the U.S. Supreme Court ruled that the government had overstepped its authority by placing a GPS device on a suspects’ car without a valid warrant, the Court tossed the data collected by the unlawfully secured GPS device out of court.  Undeterred, the government did an end run around the decision – they subpoenaed the suspects’ cell phone location data from his cellular provider.

The cell phone location data gave them (after the fact) the same information they unlawfully obtained before the fact.  It’s almost (well not quite but almost) like saying that putting an illegal GPS device on the car didn’t reveal anything because, well we could always have staked out your car and followed you without a warrant.  The doctrine in the law is called “inevitable discovery.”

Since they COULD have gotten the same information lawfully (even though they didn’t at the time) then this excuses the fact that they actually got the information unlawfully.

But the cell phone seizure goes even further. The government asserts that people have no expectation of privacy in their phone data (non content).  Therefore, it doesn’t matter HOW the government gets it.

Indeed, this argument could be used to excuse the government’s breaking into people’s homes, and rummaging through their papers, as long as the papers actually seized were the kind that COULD have been obtained without a warrant.

The case the government relied upon for the premise that people have no expectation of privacy in cell phone metadata (the same one the NSA relied on to take everybody’s phone records) can and has been read even more broadly than simply to diminish privacy rights in phone bills.

The case, Smith v. Maryland relied in part on the fact that the records sought (phone bills) were “voluntarily shared” with a third party – the phone company – and therefore, no reasonable person would think that these records could be private.  This is what is called the “third party doctrine.”

The implications of the government’s argument in the cell phone search case are profound.  It allows the government to “cure” an illegal search by asserting that they could have gotten the records another way.  If that’s true, then you have a lower expectation of privacy, and therefore it doesn’t matter if the cops actually got the records legally.

So the cops can “seize” the contents of your email messages, and then later get the “consent” of the party with which you had communicated.  Since you take the risk that another party to a conversation will consent to allow the police to examine the records, you have no expectation of privacy.   Same is true of documents stored in the cloud, or other records stored with third parties.

A party may have a reasonable expectation of privacy in one context and not in another.  Just because the government may subpoena bank records from my bank without my consent does not mean that I have abandoned my expectation of privacy in my bank records.

We can only hope that the government doesn’t believe what it is arguing.  That this is just a negotiating tactic for the Court.  What worries me is that the government is actually making Fourth Amendment policy based on the assumption that it has a right to acquire – though any means necessary – any records that it has the ability to acquire lawfully.  And that’s just plain dangerous.

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