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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.

[...]

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.

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.

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.

--§--

What Do You Buy For the Children 
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.


Originally posted to David Harris-Gershon (The Troubadour) on Wed Jun 25, 2014 at 08:11 AM PDT.

Also republished by Writing by David Harris Gershon.

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Comment Preferences

  •  Tip Jar (30+ / 0-)

    "If the Jew who struggles for justice for Palestine is considered anti-Semitic, & if Palestinians seeking self-determination are so accused...then no oppositional move can take place w/o risking the accusation." - Judith Butler

    by David Harris Gershon on Wed Jun 25, 2014 at 08:11:22 AM PDT

  •  Here's the link to the NYT story 30 mins. ago... (17+ / 0-)

    Supreme Court Rules Cellphones Can’t Be Searched Without a Warrant

    By ADAM LIPTAK
    New York Times
    JUNE 25, 2014   10:45AM EDT

    WASHINGTON — In a major statement on privacy rights in the digital age, the Supreme Court on Wednesday unanimously ruled that the police need warrants to search the cellphones of people they arrest.

    Chief Justice John G. Roberts Jr., writing for the court, said the vast amount of data contained on modern cellphones must be protected from routine inspection.

    The court heard arguments in April in two cases on the issue, but issued a single decision.

    The first case, Riley v. California, No. 13-132, arose from the arrest of David L. Riley, who was pulled over in San Diego in 2009 for having an expired auto registration. The police found loaded guns in his car and, on inspecting Mr. Riley’s smartphone, entries they associated with a street gang.

    A more comprehensive search of the phone led to information that linked Mr. Riley to a shooting. He was later convicted of attempted murder and sentenced to 15 years to life in prison. A California appeals court said neither search had required a warrant.

    The second case, United States v. Wurie, No. 13-212, involved a search of the call log of the flip phone of Brima Wurie, who was arrested in 2007 in Boston and charged with gun and drug crimes. The federal appeals court in Boston last year threw out the evidence found on Mr. Wurie’s phone.

    News organizations, including The New York Times, filed a brief supporting Mr. Riley and Mr. Wurie in which they argued that cellphone searches can compromise news gathering.

    The courts have long allowed warrantless searches in connection with arrests, saying they are justified by the need to protect police officers and to prevent the destruction of evidence. The Justice Department, in its Supreme Court briefs, said the old rule should apply to the new devices…

    HERE’S THE LINK to the SCOTUS' opinion.

    #            #            #

    "I always thought if you worked hard enough and tried hard enough, things would work out. I was wrong." --Katharine Graham

    by bobswern on Wed Jun 25, 2014 at 08:13:41 AM PDT

  •  So what implications does this (3+ / 0-)
    Recommended by:
    kfunk937, markthshark, Demeter Rising

    have for warrantless surveillance?  

    The most un-convincable man is the one whose paycheck depends on remaining unconvinced. -- H. L. Mencken

    by kharma on Wed Jun 25, 2014 at 08:33:27 AM PDT

    •  Unless the requirements of exigent circumstances (3+ / 0-)

      are met, it's illegal.

      Exigent circumstances - events that justify a departure from usual legal procedures such as the obtaining of a warrant, typically in order to save a life, preserve evidence, or prevent a suspect from fleeing.
      -- Webster's New World Law Dictionary

      Exigent circumstances are a very narrow set of circumstances, and bulk data sweeps do not qualify in the vast majority of situations. The only time I can think of where they would possibly apply is if a terrorist threat is received for a very specific location and time and intel is needed to prevent an attack. And even in this situation, it's now possible to apply for and receive a warrant from the squad car or police precinct without actually having to go see a judge. Which is the other point the Supremes made about technology. The game has changed on both sides of the issue.

      Is fheàrr fheuchainn na bhith san dùil

      by bull8807 on Wed Jun 25, 2014 at 08:45:16 AM PDT

      [ Parent ]

    •  It won't stop it. (1+ / 0-)
      Recommended by:
      kharma

      Remember, this was to provide evidence supporting a charge of murder.  You can't use it as evidence and it can't be the source of future charges. But it does not prevent taking the information.

      So, they will now seize the phone and get a warrant before mining the phone.  Not really that big a deal.  Likely, given the other info the cops had in the Riley case, they would have gotten the warrant.

      "You cannot win improv." Stephen Colbert (https://www.youtube.com/watch?v=m6tiaooiIo0 at 16:24).

      by Publius2008 on Wed Jun 25, 2014 at 09:01:38 AM PDT

      [ Parent ]

      •  It will stop the warrantless phone tapping (1+ / 0-)
        Recommended by:
        markthshark

        I mean in situations where the phone isn't actually seized. A lot of local police departments sweep indiscriminately by intercepting incoming and outgoing phone/computer data, without the owner of the device ever knowing or being charged with anything. I think the implications for this situation are more significant than the search incident to arrest issue, and the ruling applies to both.

        Is fheàrr fheuchainn na bhith san dùil

        by bull8807 on Wed Jun 25, 2014 at 09:24:14 AM PDT

        [ Parent ]

        •  They're using a surveillance program... (2+ / 0-)
          Recommended by:
          bull8807, kharma

          called "Stingray," which is in the news and under fire right now.

          A lot of local police departments sweep indiscriminately by intercepting incoming and outgoing phone/computer data, without the owner of the device ever knowing or being charged with anything.
          They started using it in Sarasota, Florida where I lived up until a few months ago.

          It's ubiquitous, almost unimaginable in its scope and depth. Local detectives were using it down here on a regular basis, even using traffic light images as the basis for its use.

          I'm hoping this decision will kill it. or at least slow it down.

          "If one would give me six lines written by the hand of the most honest man, I would find something in them to have him hanged." - 17th-century French clergyman and statesman Cardinal Richelieu.

          by markthshark on Wed Jun 25, 2014 at 10:18:11 AM PDT

          [ Parent ]

          •  It was enabled by a policy void which is being (3+ / 0-)
            Recommended by:
            markthshark, Demeter Rising, kharma

            corrected by decisions like this. It may take a few more court cases to iron out the overall policy on data transmitting and storage devices, as well as cloud storage. But with a 9-0 decision and overwhelming public support, it's clear to everyone where this is going. These devices are no longer being defined as regular objects, but a separate category. This is huge. How far this definition goes and exactly what it covers still need to be figured out but the framework is finally being laid and hopefully we will have a coherent set of laws regarding privacy in the technology age within this decade.

            The other side of the coin is it will become much easier to prosecute data miners and hackers who use the same methods to intercept data. A lot of what they do isn't even considered a crime under current law because we have no mechanisms to define their actions, or tech-savvy police departments with the resources to investigate even when identity theft and data theft have clearly occurred. This will also change as we create better policies to deal with sensitive electronic data. The Supreme Court has unequivocally decided that this data is private and belongs only to the sender and intended recipient(s), so it is protected under the 4th amendment.

            Is fheàrr fheuchainn na bhith san dùil

            by bull8807 on Wed Jun 25, 2014 at 10:38:20 AM PDT

            [ Parent ]

            •  You're right. This is huge... (2+ / 0-)
              Recommended by:
              bull8807, kharma

              This decision could provide a much-needed kick in the ass to Congress. They need to be schooled, able to get ahead of the technological advances we're constantly bombarded with these days. A basic understanding is imperative.

              Once again, Congress has been asleep on the job.

              "If one would give me six lines written by the hand of the most honest man, I would find something in them to have him hanged." - 17th-century French clergyman and statesman Cardinal Richelieu.

              by markthshark on Wed Jun 25, 2014 at 11:56:55 AM PDT

              [ Parent ]

  •  9-0 (7+ / 0-)

    Some days, they all get it right.

  •  Music to my ears (2+ / 0-)
    Recommended by:
    kharma, marina
    ...a stunning endorsement of privacy rights for U.S. citizens.

    If cats could blog, they wouldn't

    by crystal eyes on Wed Jun 25, 2014 at 08:52:10 AM PDT

  •  Why did the O admin & state of California (2+ / 0-)
    Recommended by:
    kharma, Odysseus

    waste taxpayer money and bring this to the US Sct?

    You don't get a butt whipping like this (9-0) from this Supreme Court unless you really have brought a poor case.

    Well, thanks anyway for establishing what should have been obvious to any rational person.  I guess we need that these days.

    "You cannot win improv." Stephen Colbert (https://www.youtube.com/watch?v=m6tiaooiIo0 at 16:24).

    by Publius2008 on Wed Jun 25, 2014 at 08:55:52 AM PDT

    •  There were two cases decided in California, which (0+ / 0-)

      were consolidated for this ruling.

      "If the Jew who struggles for justice for Palestine is considered anti-Semitic, & if Palestinians seeking self-determination are so accused...then no oppositional move can take place w/o risking the accusation." - Judith Butler

      by David Harris Gershon on Wed Jun 25, 2014 at 09:02:58 AM PDT

      [ Parent ]

    •  Perhaps it was a case of, (1+ / 0-)
      Recommended by:
      kharma

      "I dare you to defy police state authority," at least when it came to the lower, less powerful court judges. Challenging the authoritarian mafia is no joke.

      Government and laws are the agreement we all make to secure everyone's freedom.

      by Simplify on Wed Jun 25, 2014 at 09:20:19 AM PDT

      [ Parent ]

    •  CA didn't appeal. They won at (1+ / 0-)
      Recommended by:
      BMScott

      the trial court and appellate stage.  The defendant appealed—he was the one who brought it to SCOTUS.  

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