Politics & Policy

The Supreme Court Strikes a Blow for Privacy Rights

In our digital age, searching a phone requires a warrant.

Nine to nothing, the Supreme Court today struck a blow for the Fourth Amendment, simultaneously rebuking the Obama administration and the state of California, both of which had claimed the power to search suspects’ cell phones without first obtaining a warrant.

The lead plaintiff in the case was David L. Riley, a Californian who was pulled over in 2009 after San Diego police noticed that he was driving a vehicle with an expired registration. Searching Riley’s car, authorities discovered loaded guns and a cell phone. Growing suspicious, the majority decision notes, an “officer accessed information on the phone and noticed the repeated use of a term associated with a street gang.” A more detailed inspection, conducted after his arrest, revealed “photographs and videos” that linked Riley to a “shooting that had occurred a few weeks earlier.” Prosecutors charged him with weapons violations and sought an “enhanced sentence based on [his] gang membership.”

Riley contended that the initial warrantless search of his cell phone was unconstitutional, and requested in consequence that all evidence based upon that search be suppressed at trial. His overtures were denied. He was convicted. Later, a California appeals court sided with authorities, determining that law enforcement had acted properly at all stages. This morning, the Roberts Court overturned that decision and one other — a similar federal case, United States v. Wurie. The Court’s bottom line: That “the police generally may not, without a warrant, search digital information on a cell phone seized from an individual who has been arrested.”

The Fourth Amendment holds that,

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Does this apply to phones? In its decision, the Court decided that it most definitely does, noting that where once a “search of a person was limited by physical realities and generally constituted only a narrow intrusion on privacy,” this is no longer the case. In our digital age, the unanimous decision contended, smartphones are windows into the soul, permitting individuals to carry upon their person all of their correspondence, financial information, travel plans, location information, contact details, photographs and videos, and any other “sensitive personal information” that they elect to add. In this manner are “vast quantities of personal information” — “from the mundane to the intimate” — placed “literally in the hands of individuals.” One phone can thus serve as the “papers” and the “effects” of our day, containing all of “the privacies of life.” To compare a device that can hold so much that is personal to a wallet or a Rolodex, as federal authorities had, Roberts argued, is “like saying a ride on horseback is materially indistinguishable from a flight to the moon.”

All of which is to say that the virtual nature of the device does not, the court concluded, “make the information any less worthy of the protection for which the Founders fought.” Indeed, the court drew a direct line between the case and the Revolution. “The Fourth Amendment,” the opinion avers,

was the founding generation’s response to the reviled ‘general warrants’ and ‘writs of assistance’ of the colonial era, which allowed British officers to rummage through homes in an unrestrained search for evidence of criminal activity. Opposition to such searches was in fact one of the driving forces behind the Revolution itself.

For those of us who are tired of watching the Court subjugate sacred individual rights to the progressively malleable notion of “compelling governmental interest,” the Court’s ready acknowledgement that liberty must often trump security was refreshing. “Privacy,” Roberts wrote for the majority, “comes at a cost,” and in consequence, the Court “cannot deny that our decision today will have an impact on the ability of law enforcement to combat crime.” Nevertheless, the rules in this area were deemed to be clear. “Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple,” Roberts wrote bluntly: “Get a warrant.”

That the case was unanimously decided and the opinion so emphatically argued indicates that this Court is serious about protecting digital privacy. (As Lyle Denniston notes, the court rejected pretty much every one of the state’s arguments, carving out an exception in cases in which law enforcement is “facing a dire emergency, such as trying to locate a missing child or heading off a terrorist plot.”) Nevertheless, the implications of its determination should not be overstated. As the lawyer Gabriel Malor correctly observed, “today’s decision is very strong on cell phone memory privacy, but draws no conclusions about interception of publicly broadcast signals.” In practice, this means that law enforcement may not, as a matter of course, search what is currently on a suspect’s phone but it may still monitor much of what is sent to it through the air. The decision does not, for example, prevent the NSA from collecting metadata; it does prevent the cops from stopping you in your car and searching your phone’s hard disk without a warrant. This is a significant victory, to be sure. But it is by no means an all-out repudiation of our current surveillance status quo. And, devoutly as a more general reining in of the state is to be wished, there is nothing in today’s ruling that suggests one is imminent. A step forward, yes. But there is more work to be done yet.

— Charles C. W. Cooke is a staff writer for National Review.

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