The following editorial appeared this week in The New York Times:
The nine justices of the Supreme Court - whose average age is 68 - often admit to being unfamiliar with modern technology, if not befuddled by it. While listening to oral arguments in April, Chief Justice John Roberts Jr. asked, with apparent sincerity, why anyone other than a criminal would carry two cellphones.
Yet in a gratifyingly sweeping ruling on Wednesday, the court embraced a central reality of the digital age and protected such phones from being searched without a warrant during an arrest, except in rare circumstances.
“Modern cellphones are not just another technological convenience,” Roberts wrote for a unanimous court. “With all they contain and all they may reveal, they hold for many Americans ‘the privacies of life.’”
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The issue arose in two separate cases involving police officers who searched the phone of an arrested suspect without a warrant. In one case, United States v. Wurie, a check of the phone’s call log led police officers to an apartment where they found evidence of drug crimes. In the other case, Riley v. California, which began as a traffic stop, photos and videos on a seized phone revealed gang activity and resulted in a dramatically increased sentence for the defendant.
In both cases, the government argued that the searches were permissible under a long-established exception to the Fourth Amendment, which generally requires the police to get a warrant before searching “persons, houses, papers, and effects.” After a lawful arrest, however, the police may search a person’s body and immediate surroundings without a warrant, both for their own protection and to prevent the destruction of evidence.
Cellphones have upset that balance, as the court rightly recognized. First, nearly everyone has one and uses it daily. They have become so prevalent so fast that, as Roberts wrote, “the proverbial visitor from Mars might conclude they were an important feature of human anatomy.” More important, they contain “vast quantities of personal information,” from financial and medical records to archives over many years of private correspondence and records of places the owner has been. They are “minicomputers,” the court said, that contain more information than entire houses once did.
In short, the expectation of privacy in a phone’s contents outweighs the immediate needs of law enforcement.
Particularly since police officers may still conduct a warrantless search of a phone in a true emergency, the court was equally unconvinced by the government’s other arguments - that a phone’s incriminating data could be remotely wiped, for instance, or that it could alert an officer to approaching accomplices who might threaten his safety. These scenarios were hypothetical, the court said, or they could be addressed by existing technology.
The court acknowledged that cellphones are widely used by criminals and that its ruling would have an impact on law enforcement’s ability to fight crime. But it said the warrant requirement is “not merely an inconvenience to be somehow weighed against the claims of police efficiency.”
“Privacy comes at a cost,” the court wrote.
It’s worth noting that this cost is still very low: Judges nearly always grant warrant requests, and as the chief justice pointed out, it is easier than ever to get one quickly today, thanks to the same technologies that gave rise to the cellphone.
Still, Wednesday’s ruling reaffirmed the essence of the Fourth Amendment’s ban on unreasonable searches and seizures — “one of the driving forces behind the Revolution itself,” as the court said — even though the Bill of Rights was written by men who could not have imagined an iPhone in their maddest dreams.