A unanimous Supreme Court ruled Wednesday that police must obtain a warrant to search the vast amount of information on a suspect’s cellphone, broadly protecting Americans’ privacy rights in the digital age.
The opinion, by Chief Justice John Roberts, dismissed law-enforcement arguments that no legal distinction existed between smartphones and the pocket litter that police long have been permitted to search when arresting a suspect—for instance, wallets, cigarette wrappers and address books.
“That is like saying a ride on horseback is materially indistinguishable from a flight to the moon,” Chief Justice Roberts wrote. “Modern cell phones, as a category, implicate privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet or a purse,” he wrote.
Warrantless searches have been justified by the need to protect officers from hidden weapons and to prevent suspects from destroying evidence. Neither rationale applied to the digital data accessible through a cellphone or other mobile devices, the court found, in erecting a requirement that police go to court before rifling through email, text messages, phone records or other data.
But individual rights sometimes outweigh the convenience of government, he wrote, adding: “Privacy comes at a cost.”
The decision, which built on several privacy rulings in recent years, was one of a pair Wednesday in which the high court forcefully applied age-old doctrines to a society rapidly being transformed by new technology. The warrant ruling, in particular, could have consequences for privacy questions that are likely to arise as technology advances.
The second decision involved online video technology by Aereo Inc., which was challenged by traditional broadcasters arguing it violated their copyrights. In Aereo, the court effectively said the company couldn’t use technology workarounds to escape copyright restrictions for a service that captured broadcasting signals, recorded them and distributed someone else’s content over the Web.
Privacy advocates hailed the cellphone ruling as a signal that the court would protect constitutional privacy interests from the vast powers of modern technology. “By recognizing that the digital revolution has transformed our expectations of privacy, today’s decision is itself revolutionary and will help to protect the privacy rights of all Americans,” said Steven Shapiro, legal director of the American Civil Liberties Union.
Law-enforcement officials were disappointed. Technology “is making it easier and easier for criminals to do their trade,” while the court “is making it harder for law enforcement to do theirs,” said Thomas Zugibe, district attorney in Rockland County, N.Y., who signed a friend-of-the-court brief arguing warrantless device searches were constitutional.
The Supreme Court has been grappling with modern technology’s implications for core constitutional rights, alternately siding with law enforcement and the individual. Wednesday’s opinion, however, was a watershed, showing that all nine justices are keen to re-examine categorical rules written for an earlier era.
The government, for instance, had argued a phone’s call log could be searched under the 1979 precedent Smith v. Maryland, which held police didn’t need a warrant to install an electronic device to record phone numbers dialed by a caller. The court dismissed that argument in the cellphone context.
That 1979 precedent also underlies the government’s rationale for the vast surveillance apparatus tracking digital communications’ “metadata” implemented since the Sept. 11, 2001, attacks. While the Smith case’s validity wasn’t at issue Wednesday, it could face scrutiny should it come before the justices.
“Cell phones differ in both a quantitative and qualitative sense from other objects that might be kept on arrestee’s person,” Chief Justice Roberts wrote. “Many of these devices are in fact minicomputers” that “could just as easily be called cameras, video players, rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps, or newspapers.”
Moreover, the information a cellphone contains—or can access through the Internet cloud—can “reveal much more in combination than any isolated record” that might have previously been found in a suspect’s pocket. “The sum of an individual’s private life can be reconstructed” through photos, email, phone records, Internet search histories and other data, the court said.
“It is no exaggeration to say that many of the more than 90% of American adults who own a cell phone keep on their person a digital record of nearly every aspect of their lives,” it continued.
That an individual can now carry such a record so casually “does not make the information any less worthy of the protection for which the Founders fought,” the chief justice wrote.
The cellphone ruling came in a pair of cases from different ends of the country that had opposite results. A federal appeals court in Boston had found a cellphone search violated the Fourth Amendment protection against “unreasonable searches and seizures,” which generally requires authorities to obtain a warrant from a magistrate before conducting a search.
But state courts in California ruled that anything found on a suspect’s person—be it a cellphone or matchbook—could be searched under recognized exceptions to the warrant requirement.
Spokesmen for both the U.S. and California departments of justice promised to work with the law-enforcement agencies they supervise to implement Wednesday’s decision.
“The department will work with its law-enforcement agencies to ensure full compliance with this decision,” U.S. Justice Department spokeswoman Ellen Canale said. “Our commitment to vigorously enforcing the criminal laws and protecting the public while respecting the privacy interests protected by the Fourth Amendment is unwavering.”
Chief Justice Roberts suggested that would be simple. “Our answer to the question of what police must do before searching a cellphone seized incident to an arrest is accordingly simple—get a warrant,” he wrote.
In those rare events where it truly would endanger public safety or risk a loss of evidence, police can act without a warrant and later argue in court their actions were justified by “exigent circumstances,” he wrote.
Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas, Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan joined the Roberts opinion in full. Justice Samuel Alito, who agreed in part, wrote separately to urge legislatures to take the lead in determining privacy rights, rather than leaving the matter to the courts.
The chief justice acknowledged that mobile devices are essential tools for today’s criminals, as they are for most Americans, and that requiring police to seek a magistrate’s permission to search them could impede some investigations. (Wall Street Journal)