It is this sentence from a recent Ars Technica article that describes the dilemma the Supreme Court of the United States is now considering: “If nine out of 10 American adults own mobile phones and the devices have advanced to become virtual extensions of our personal and private lives, at what point does law enforcement’s access to their call logs, photos, and cloud-hosted data become ‘unreasonable’ invasions of constitutionally protected privacy?”
It was only yesterday that the Supreme Court heard oral arguments concerning two cases, United States vs. Wurie and Riley vs. California, that revolve around the question of whether or not law enforcement officers should have the right to search the contents of smart devices without a warrant.
In 2007, police arrested Brima Wurie under the accusation that he was selling drugs from his vehicle. Police confiscated Wurie’s phone during the arrest and later used his calling history to identify a residence at which they found firearms, ammunition, and drugs. After finding the contraband, police then charged Wurie with additional crimes, and Wurie countered with an appeal to the additional charges by claiming that the search of his phone was breach of the Fourth Amendment. Wurie won the appeal, and two of the three charges were dropped. Now, the government is appealing to the Supreme Court.
In the other case, police pulled over a vehicle David Riley was operating in 2009 for allegedly driving with expired tags. They then arrested Riley for that offense and for allegedly operating the vehicle with an expired license. After searching Riley’s car, police found two firearms under its hood, and they later used Riley’s smartphone — searched once during the arrest and again at the precinct — to determine that he was in a photo with a gang member reportedly involved in an unsolved drive-by shooting case. After an initial trial resulted in a hung jury, Riley was convicted in a retrial for 15 years to life for shooting at an occupied vehicle, attempted murder, and assault with a semiautomatic weapon. He is also now appealing to the Supreme Court.
Ars Technica continued to comment on the issue and explained that Justices Elena Kagan and Sonia Sotomayor appeared sympathetic to the notion that police should need warrants to search an arrested person’s cell phone. Others, including Chief Justice John Roberts, argued that there should be a middle ground. Roberts, in particular, states that the court could identify some information as public and other information as private. For instance, users place information on their Facebook accounts with the expectation that Facebook will make that information publicly available. So, it is possible that the court could separate public data from private data by examining the user’s intention. Riley’s attorney, Jeffrey Fisher, argued that a real-world application of such a rule would be impossible to administer.
The Volokh Conspiracy goes into detail about the practical aspect of warrants, as well. “How much privacy does it actually add to impose a warrant requirement?” it asks. Indeed, police would need probable cause to determine that information contained within a phone was necessary when intending to investigate a crime.
Once they have such cause, however, limiting factors such as those discussed in Roberts’ Facebook-related example, may not hold much water. Volokh Conspiracy argues that courts have previously granted warrants that allow parties to search for broad sets of information within a computer system. Given that such warrants are made possible, how does the need for a warrant differ markedly from not needing a warrant?
SCOTUS is expected to rule on both the Wurie and Riley cases by the end of June. There are a lot of factors at play in both cases, and it will certainly be interesting to find out how, in the end, the justices rule for or against warrants and how they determine what reasonable expectation of privacy citizens may expect from the devices they carry with them everywhere.
Image courtesy of UpstateNYer via Wikimedia Commons