BREAKING | Supreme Court Makes Sweeping Endorsement of Digital Privacy

By Robert Barnes, The Washington Post

25 June 14

he Supreme Court ruled unanimously Wednesday that police generally must obtain a warrant before searching the cellphone of someone they arrest, saying it was applying to modern technology the same privacy rights that date back to the nation’s birth.

Modern cellphones “hold for many Americans the privacies of life,” Chief Justice John G. Roberts Jr. wrote, in a sweeping opinion that seemed to contain warnings about the government’s ability to monitor the private lives of its citizens.

“The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought,” he wrote.

Roberts said that in most cases when police seize a cellphone from a suspect, the answer is simple: “Get a warrant.”

At oral argument, the court seemed divided on the cases. But they united behind soaring language from Roberts about privacy concerns in the digital era at a time when government surveillance programs dominate headlines and the cellphones that 90 percent of Americans carry contain sensitive information and a record of their whereabouts.

“There are apps for Democratic Party news and Republican Party news; apps for alcohol, drug, and gambling addictions; apps for sharing prayer requests; apps for tracking pregnancy symptoms; apps for planning your budget; apps for every conceivable hobby or pastime; apps for improving your romantic life,” Roberts wrote.

The court in the past had approved searching a cigarette pack found on a suspect, Roberts noted. But allowing police to look at a cellphone was more akin to allowing them to ransack a person’s home.

“Indeed, a cell phone search would typically expose to the government far more than the most exhaustive search of a house: A phone not only contains in digital form many sensitive records previously found in the home; it also contains a broad array of private information never found in a home in any form,” such as tracking a person’s movement.

Justice Samuel A. Alito filed an opinion concurring in the judgment, despite reservations about what it might mean for law enforcement.

He also urged legislatures and Congress to get involved.

“Many forms of modern technology are making it easier and easier for both government and private entities to amass a wealth of information about the lives of ordinary Americans, and at the same time, many ordinary Americans are choosing to make public much information that was seldom revealed to outsiders just a few decades ago,” Alito wrote.

“In light of these developments, it would be very unfortunate if privacy protection in the 21st century were left primarily to the federal courts using the blunt instrument of the Fourth Amendment.”

In general, warrants are required for searches, but the court’s precedents have said that a person’s privacy expectations diminish considerably after an arrest. Police may protect themselves and others by searching the arrestee for weapons or securing evidence that might be destroyed.

Roberts said he “cannot deny” that the decision will have an impact on the ability of law enforcement to combat crime. “Privacy comes at a cost,” he wrote.

But he said police can use their own technology to ensure that the information on cellphones that might contain critical evidence is not erased or lost. He also said there could be “case-specific”exceptions to the warrant rule.

The decision settled a question that has divided and vexed lower courts: how to apply age-old privacy protections to a world transformed by technology.

The court considered two such cases in which courts came to different conclusions.

Brima Wurie was picked up in Boston on suspicion of selling crack cocaine in 2007. While he was in police custody, his flip-style phone kept receiving calls from a number identified as “my house.”

Using the telephone number and a reverse directory, police located his address, obtained a warrant to search his home, and found crack, marijuana and a weapon.

In a 2-to-1 decision, a panel of the U.S. Court of Appeals for the 1st Circuit threw out the evidence against Wurie. The majority endorsed a rule that said warrantless cellphone data searches are “categorically unlawful,” given the “government’s failure to demonstrate that they are ever necessary to promote officer safety or prevent the destruction of evidence.”

A case from California went the other way.

David Leon Riley was pulled over in 2009 by a San Diego police officer for an expired registration. Police quickly discovered that Riley’s license was suspended and later found guns under the car’s hood.

Police also examined his smartphone and found language that led them to believe Riley had gang connections. A photograph on the phone linked him to a car that police said had been used to flee a shooting.

Riley was indicted on murder and other charges, convicted and sentenced to more than 15 years in prison.

A California court upheld the officers’ actions, and similar conflicting decisions have been recorded throughout the country.