In case you missed it, the Supreme Court today ruled on cellphone privacy and police searches, deciding that a search of digital communications requires police to obtain a warrant — starting the cleanup of an area of basic American law that has been terrifyingly eroding since technology began advancing in leaps and bounds.
While the Fourth Amendment is relatively clear in its protections for you in respect to the affairs of law enforcement, little clarity existed to ensure these protections extended to your life in digital form. And as a society that now lives a significant portion of our lives “in the cloud” or on social media, this represented a change in our rights to privacy and ability to decline self-incrimination… and it seemed for a while as if this was destined to be an end to the legal prohibition of unreasonable search and seizure forever.
What the issue boiled down to was new definitions of home and person, and an unprecedented extension of our lives to digital means. Cops used to have to tail a suspect or even just a person who might have information in person, staying back from private areas, unable to enter protected spaces like a bed or bathroom without first making a case to a judge about why such an intrusion is legally necessary and warranted.
All that changed when we began carrying small devices that track and log our travels for a multitude of purposes — one that eventually included “if cops pull you over for something as minor as a broken taillight.” Suddenly, all Americans were under a proxy police shadow — and at any point in the future, your data could be dumped and scrutinized not only to investigate you… but perhaps to compel you to comply with a wholly unrelated investigation. (Or, alternately, you think your actions are beyond reproach… can you say that about your boss, your company, your kids, your siblings, your spouse, or your friends?)
MotherJones provides an example case in which a suspect’s Fourth Amendment rights were deemed to have been violated through warrantless search of his cell phone, explaining:
“After he was booked at the station, the officers noticed that the phone they had seized from [Brima] Wurie was receiving calls from a number identified as ‘my house.’ They then looked at his call log without a warrant and used that information, as well as a photo of what appeared to be his girlfriend, to find his home. They then searched his residence, obtaining additional evidence that was used to charge Warie. The U.S. Court of Appeals for the First Circuit found that in this case, the officers violated the Fourth Amendment.”
Today’s Supreme Court decision reverses an earlier decision by the California appellate court in Riley v. California. What’s so promising about it is not that it rules in favor of extant laws regarding what police can and cannot do to your personal life (also a major plus), but that it clearly articulates why digital media falls under certain protections that normally warrant express judicial permission when it comes to search and seizure.
In the opinion, the Court begins with this crucial clarification:
“Before cell phones, a search of a person was limited by physical realities and generally constituted only a narrow intrusion on privacy. But cell phones can store millions of pages of text, thousands of pictures, or hundreds of videos. This has several interrelated privacy consequences.”
It continues, explaining that just because the data is easy to access and compile that it isn’t something cops should be able to cull for unspecified or day to day purposes:
“First, a cell phone collects in one place many distinct types of information that reveal much more in combination than any isolated record. Second, the phone’s capacity allows even just one type of information to convey far more than previously possible. Third, data on the phone can date back for years.”
Finally, the Court concludes:
“In addition, an element of pervasiveness characterizes cell phones but not physical records. A decade ago officers might have occasionally stumbled across a highly personal item such as a diary, but today many of the more than 90% of American adults who own cell phones keep on their person a digital record of nearly every aspect of their lives.”
Exceptions outlined by the Supreme Court in the cellphone privacy ruling today were notably pro-citizen, addressing concerns from police groups about situations when it might be necessary to examine a cellphone — the opinion stated that “officers may examine the phone’s physical aspects to ensure that it will not be used as a weapon, but the data on the phone can endanger no one.”
Ultimately, John Roberts writes:
“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. Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple — get a warrant.”
Whether this ruling on cellphones and the Fourth Amendment sets the stage for a rollback of the erosion of basic civil rights remains to be seen — but the ruling is a hugely important one to anyone who is concerned about the security of data that is now accumulating as a matter of course and not choice.