In a monumental endorsement of digital privacy, the Supreme Court has unanimously ruled that law enforcement may not search the digital contents of cell phones without a warrant.
The opinion, written by Chief Justice John Roberts, explicitly affirms that a citizen's digital privacy is protected by the Fourth Amendment, and notes that digital devices are both quantitatively and qualitatively different than normative possessions because they contain "every aspect" of a person's life.
In two cases addressed by the court, citizens had their cell phones searched by law enforcement after a) a routine traffic stop, and b) observed drug activity. In each case, digital evidence found on the arrestees' cell phones led to charges, and ultimately, convictions of more serious crimes.
In each case, the petitioners held that the evidence found on their cell phones had been illegally obtained due to a violation of their Fourth Amendment rights. However, a California Court of Appeals ruled that the warrantless searches were constitutional in each case.
Today, the Supreme Court overturned those rulings, holding that digital privacy is protected by the Fourth Amendment, and distinguishing digital devices from other objects a person might own.
Cell phones differ in both a quantitative and a qualitative sense from other objects that might be carried on an arrestee’s person. Notably, modern cell phones have an immense storage capacity. Before cell phones, a search of a person was limited by physical reali- ties and generally constituted only a narrow intrusion on privacy. But cell phones can store millions of pages of text, thousands of pic- tures, or hundreds of videos. This has several interrelated privacy consequences. 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. In addition, an el- ement 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.In his ruling, Roberts quoted the Fourth Amendment and focused on the concept of "reasonableness" enshrined therein with regard to searches by law enforcement. Due to the vast amounts of private data contained on cell phones, the court today ruled that it is not reasonable to search the digital contents of mobile devices upon arrest, rejecting the idea of treating such devices as normative physical implements. Instead, a warrant must be obtained after the reasonableness of such a digital search is presented.
It is true that this decision will have some impact on the ability of law enforcement to combat crime. But the Court’s holding is not that the information on a cell phone is immune from search; it is that a warrant is generally required before a search. The warrant re- quirement is an important component of the Court’s Fourth Amend- ment jurisprudence, and warrants may be obtained with increasing efficiency. In addition, although the search incident to arrest excep- tion does not apply to cell phones, the continued availability of the ex- igent circumstances exception may give law enforcement a justifica- tion for a warrantless search in particular cases.
While this ruling is limited to a physical arrest and encounter with police, it is a sweeping endorsement of digital privacy rights, and the fact that digital privacy is protected by the Fourth Amendment. Such a ruling may come into play if cases relevant to the U.S. governments' surveillance of Americans' digital information are heard before the Supreme Court, as many expect will eventually happen in the wake of the NSA's sweeping, warrantless surveillance.
For now, privacy advocates should cheer this decision, which is a stunning endorsement of privacy rights for U.S. citizens.
David Harris-Gershon is author of the memoir What Do You Buy the Children of the Terrorist Who Tried to Kill Your Wife?, recently published by Oneworld Publications.