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Cellphones and the expectation of privacy

J.K. Rowling may have been right in her observation that the best way of measuring a man is to see how he treats his inferiors, but the best way of learning everything about him is to spend a couple hours going through his computer.

Or his cellphone.   

Privacy is at the core of the 4th Amendment, but the march of technology has presented the courts with issues that could not have been imagined by the Framers, such as wiretapping, thermal imaging, GPS devices, helicopter overflights.  On Tuesday, the Supreme Court heard oral argument in two cases, US v. Wurie and Riley v. California, which involved the latest technological wrinkle:  whether police can search a cellphone incident to an arrest.  The cops stopped Riley for expired license tags, and arrested him for driving with a suspended license.  The police inspected Riley's Samsung smartphone at the station, and found pictures and phone logs which linked him to a shooting.  While the search in Riley's case was upheld, Wurie proved luckier:  the 1st Circuit reversed his 262-month sentence for drug dealing and weapons possession, which was based on a warrant obtained after the police inspected the call logs on his flip phone.

Back in 2009, the Ohio Supreme Court in State v. Smith dealt with this same issue, and held that the police needed a warrant to search a cellphone which had been seized during an arrest.  The basis of that was the "tremendous amounts of private data" the cellphone holds, which "gives their users a reasonable and justifiable expectation of privacy in the information they contain."  From the tone of the argument on Tuesday, none of the justices appeared inclined to adopt such a categorical approach, either holding that the police always need to obtain a warrant to search a cellphone incident to arrest, or never need to. 

But if you're not going to draw the line there, where do you draw it?  Several possibilities:

Distinguishing between levels of offensesUnder the Court's prior rulings, any violation of the law provides cause for arrest.  As Kagan observed, the police could arrest a person for a seatbelt violation, seize the cellphone, and thus obtain a treasure trove of information:  emails, bank records, medical data, and other "very intimate communications."  The problem with distinguishing between "serious" and "nonserious" offenses is, as Kennedy acknowledged, a lack of any foundational basis:  "I don't think that exists in our jurisprudence.

Limiting the search to the crime.  This is an offshoot of the one above, and goes back to the roots of the exception for searches to incident to arrest:  the need to protect police officers, and the need to preserve evidence.  Under this approach, the search would be limited to information relevant to the crime the person had been arrested for.  Deputy U.S. Solicitor General Michael Dreeben, arguing for the government on California's side, suggested that a search could be allowed if the cops had reason to believe that a particular application on a cellphone might provide evidence of that crime.  Of course, as noted by Stanford Law Professor Jeffrey Fisher, who represented Riley, there are serious problems with adopting an "app by app" definition of privacy.

Limiting the search depending on the device.  The justices seemed to be aware of the substantial differences between a smartphone and a flip-phone; in fact, Kennedy offered the question to Fisher whether the Court could uphold the search in Wurie and still rule in favor of Riley.  On the other hand, Sotomayor suggested that whatever the ruling, it would also apply to tablets and laptops.

Whatever happens, it's not going to be clean.  Assuming a warrant is needed, what does the warrant say?  The warrant is supposed to specify what is being sought; other than the contents of the entire cellphone, what is the search limited to?  And there's the problem of writing a rule that may get overtaken by further technological innovations.  Back in 1979, the Supreme Court in Smith v. Maryland upheld the use of "pen registers" -- a mechanical device that identified the numbers called by a robbery suspect.  The Court held that capturing the phone numbers, but not the content, of calls wasn't a search because users didn't have an expectation of privacy in the numbers they dialed.  Whatever the logic of the decision in 1979, it looks somewhat timeworn in light of NSA's massive and warrantless collection of telephone metadata.

That concern is highlighted by the fact that the people making that decision are not exactly on the frontiers of technology.  While a few of the justices appeared at least somewhat knowledgeable about the devices -- Sotomayor at one point discussed the possibilities of the police simply putting the phone in "airplane mode" to prevent remote destruction of its contents -- the level of awareness was perhaps best captured by the exchange between Dreeben and Breyer, with Dreeben observing that he didn't know whether Breyer had a smarthphone, and Breyer replying, "I don't, either, because I can never get into it because of the password."

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