Archive for August 2014

Search and Seizure in the Digital Age

It is a rare circumstance when our United States Supreme Court agrees so completely as they did in the case of Riley v. California: all nine of the Justices agreed that law enforcement officers DO need a search warrant to examine the contents of your cell phone.

This question is no longer about seeing who called and whom you called, right? And it also isn’t just about the pictures you took with your phone. Today’s smartphones are very small computers that either store or grant access to much of a person’s whole life. Here’s a short list off the top of my head that people can use their smartphones for:

Phone
Phone/address book
date book
file folder of letters
file folder of documents
photo album
record collection
tape recorder with recorded voice messages
answering machine
atlas
camera
bookshelf
sky map
book of stores, offerings, promotions (coupon books, etc.)
lockbox
shopping list
television viewer
movie collection
newspaper stack
magazine rack

I know there are many functions I’ve left off, but, as I said, this was off the top of my head. The significant thing is that for each of these items I’ve listed, in a physical world, law enforcement would need a search warrant to search these items.

After most of the arguments had been made, NPR posted some of the significant ones, and this exchange, in particular, was chilling on one hand, and encouraging on the other:

[California Solicitor General Edward ]DuMont replied that people make a choice — they “choose” when they carry their cellphones with them — and thus they should have “no expectation of privacy” if they are arrested.
[Justice Elena] Kagan, incredulous: “Are you saying one has to keep a cellphone at home to have an expectation of privacy?”

This ruling was more than simply telling law enforcement to obey the Constitution; this ruling made clear that we are living in an age that is very different from the one that existed when the Constitution was drawn up, and that in order to preserve the liberty that the framers intended, the limits on the State—which was the sole purpose of the Constitution—must be examined and clarified and explained from time to time. Whereas in a previous age, a pre-digital age if you will, a person’s effects carried with him were indeed searchable, at that time we would be talking about a few photos, or a few letters, or a couple of books, but at this time we must adjust that understanding to be a stack of photo albums, a cabinet of correspondence, an entire library, and even beyond that, a bank teller, a shopping portal (I can’t even think of a pre-digital counterpart to that), and a window to documents stored elsewhere.

The arguments against the warrant requirement seem to have been covered by exception rules in non-digital warrant requirement cases. An amicus brief filed by the Association of State Criminal Investigative Agencies cites the example of a car parked in front of a building, cop walks by and sees bomb-making materials in the front seat and the driver frantically sending a text message. Under those circumstances, that is, to prevent harm and/or to prevent the destruction of evidence, the law enforcement officer could search without a warrant. He may still be called on the carpet for it in court, but he would easily be able to defend his actions as being pursuant to preventing harm or destruction of evidence. And if you read through the brief, you will see that every example cited in hopes of obtaining a broad ruling against a warrant requirement was covered by the exception.

Another brief filed to support the state of California’s position uses similar arguments, but takes it further, claiming that law enforcement has “unqualified authorityto search the person of the arrestee.”

If we could always count on authority to use power wisely and properly, and to handle our information appropriately, we would never have needed the Constitution in the first place. I was very surprised, and extremely pleased, to see that all nine of our Supreme Court Justices agreed with me on this one.

Read the whole thing HERE, and see how the process unfolded HERE.