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.The close of today's unanimous Supreme Court decision:
Amendment 4, United States Constitution
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.Was that so hard? It's right there, in ink on parchment: get a damn warrant.
Riley v. California (PDF), June 25th, 2014
The opinion points out that a cell phone search can access data beyond what's on the device itself, i.e. on the cloud:
Treating a cell phone as a container whose contents may be searched incident to an arrest is a bit strained as an initial matter. [...] But the analogy crumbles entirely when a cell phone is used to access data located elsewhere, at the tap of a screen.The court doesn't overturn the 1979 Smith v. Maryland "pen register" ruling but does take a whack at the government's expansive use of it since:
Moreover, call logs typically contain more than just phone numbers; they include any identifying information that an individual might add, such as the label “my house” in Wurie’s case.And the court warns generally against over-stretched comparisons of technological devices to older media:
But the fact that a search in the pre-digital era could have turned up a photograph or two in a wallet does not justify a search of thousands of photos in a digital gallery.Am I over-interpreting the opinion to think that it also obliquely takes a whack at the idea that "business records," information people store with other entities and the metadata about that information, fall outside of "papers and effects?"
Footnote 1 points out that the opinion is about arrests, not necessarily about the likes of data collection online:
Because the United States and California agree that these cases involve searches incident to arrest, these cases do not implicate the question whether the collection or inspection of aggregated digital information amounts to a search under other circumstances.The opinion also brings up exceptional circumstances under which the police may still search a cell phone without a warrant, avenues by which the government will undoubtedly continue to push at (and exceed) the limits of its legitimate exercise of power.
A bit on how the government ended up overreaching:
In purely technical constitutional terms, the ruling put strict new technology-based limits on a century-old doctrine on police authority to search: the idea that, once police had arrested an individual, they could search items that person had brought along, in person or within reach in a car. Such a “search incident to arrest” exception to the Fourth Amendment warrant requirement had been a feature of criminal law since it was first mentioned by the Court in 1914.This post drew upon some of the selections of the opinion by emptywheel:
The Court did not cast aside any of its prior rulings allowing police to make such searches; it simply declared that they do not apply to cellphones, because of the nature of those digital devices.
Opinion analysis: Broad cloak of privacy for cellphones
Lyle Denniston, SCOTUSblog, June 25th, 2014
Unanimous: Cops Need a Warrant to Access Your Phone DataThe opinion had a little interlude into "tinfoil hat" territory—literally (and actually rationally!):
By emptywheel, June 25th, 2014
Second, if they are concerned about encryption or other potential problems, they can leave a phone powered on and place it in an enclosure that isolates the phone from radio waves. [...] Such devices are commonly called “Faraday bags,” after the English scientist Michael Faraday.To bring home the importance of Fourth Amendment protections of our rights, the opinion states explicitly that those rights are more important than the leeway for the police to act. I appreciate such a frank discussion, one that your typical politician shies away from.
We cannot deny that our decision today will have an impact on the ability of law enforcement to combat crime. [...] Privacy comes at a cost.As to how fundamental this issue is to what it means to live in a free country:
Our cases have recognized that the Fourth Amendment 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.