Wednesday, June 25, 2014

No Warrantless Searches of Cell Phones

The US Supreme Court has just handed down its decision in the cases of Riley and Wurie, which raised a single central issue: If the police seize your cell phone in the course of an arrest, can they search it without a warrant? Warrantless searches of your person are certainly permissible under some circumstances---they can check your pockets to see if you have a gun, for example. And the radius of permissible warrantless searches has gradually expanded through a series of court decisions. But if they check your pocket for a gun and pull out a smartphone, can they look at, oh, your bank account, health records, photo gallery, and email, all of which are either on or are accessible through that device?

This might seem to be a pretty straightforward privacy rights case, but of course there really is no right to privacy in the Constitution. It's a question of how far the Fourth Amendment goes in protecting "persons, papers, and effects."

In a unanimous decision, the court decided that your smartphone is the modern equivalent of your papers---even though in important respects your bits and your papers are not equivalent. For example, you may be able to delete your bits, or lock them away, remotely. Nonetheless, the court was unequivocal.
Held: The police generally may not, without a warrant, search digital information on a cell phone seized from an individual who has been arrested. 

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