U.S. Supreme Court Moves to Protect Cell Phone Data

In a unanimous opinion announced earlier today, the U.S. Supreme Court ruled that police officers must obtain a warrant to search a cell phone that is seized incident to an arrest.

The case stemmed from the 2009 arrest of David Riley in California on a traffic stop that found loaded firearms in his car. The officers subsequently seized Riley’s cell phone and searched through his messages, contacts, videos, and photos. Tipped off by information they found in that search, the officers charged Riley with an unrelated shooting that took place several weeks earlier.

Riley attempted to suppress the evidence officers had found on his phone, arguing a violation of his Fourth Amendment rights. The trial court disagreed, as did the appellate court, claiming that the “search incident to arrest” doctrine—used historically to ensure that a person did not have any weapons or contraband on them while in the custody of police—permitted officers to conduct a search of a seized cell phone, even if that search is conducted later and at a different location than the arrest.

Today’s ruling by the U.S. Supreme Court overturns this argument. Chief Justice John G. Roberts Jr., writing for the unanimous court, stated:

The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought. 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.

Millions of arrests occur in each year, and the majority are for alleged misdemeanors; most individuals arrested are never convicted of a crime. It is absurd to argue that officers should, in each of these cases, have the ability to peruse a person’s cell phone—chat history, intimate photos, calendared events, email correspondence, browsing history, etc. Indeed, one’s cell phone contains more information than physical documents found in his home, which are protected under the Fourth Amendment. One cannot argue that the latter should be protected while the former is open game. As the Chief Justice further wrote:

Cell phones differ in both a quantitative and a qualitative sense from other objects that might be carried on an arrestee’s person. Notably, modern cell phones have an immense storage capacity. Before cell phones, a search of a person was limited by physical realities and generally constituted only a narrow intrusion on privacy. But cell phones can store millions of pages of text, thousands of pictures, or hundreds of videos. This has several interrelated privacy consequences. First, a cell phone collects in one place many distinct types of information that reveal much more in combination than any isolated record. Second, the phone’s capacity allows even just one type of information to convey far more than previously possible. Third, data on the phone can date back for years. In addition, an element of pervasiveness characterizes cell phones but not physical records. A decade ago officers might have occasionally stumbled across a highly personal item such as a diary, but today many of the more than 90% of American adults who own cell phones keep on their person a digital record of nearly every aspect of their lives.

This point was illustrated in a legislative committee earlier this year by former Representative Ryan Wilcox, who was presenting House Bill 128 which aimed to require a warrant to access a cell phone’s location information, stored data, or transmitted data. Wilcox, who at the time worked in the telecommunications industry, projected onto a wall the display of his cell phone, showing his legislative colleagues his photos, his calendar, his texts, his email—all in an effort to illustrate how invasive it would be to allow another person unfettered access to that device.

That bill passed the House 70-1 and passed the Senate unanimously, bringing a clear mandate from the Utah legislature that positioned Utah as the leading state on matters of cell phone privacy. While today’s court ruling is a welcome development, ensuring that the policy is adhered to countrywide, Utah’s bill is still stronger and thus extremely important. For example, this case only addressed searching the contents of a phone after an arrest, but did not address using a “stingray” device to siphon data transmitted through the airwaves. Utah’s law requires a warrant for this as well, and requires officers to purge any data obtained that did not originate from the device named in the warrant.

The court ruling also makes clear that not everybody within the government is willing or able to apply old political principles to new technologies. The unanimous ruling by the high court is a great thing, but it contradicts the opposite rulings by lower judges who consistently sided with police officers. We hope that the court’s ruling today, along with Utah’s law, encourages officers everywhere to understand and respect the importance of keeping our digital devices private as part of the “effects” protected under the Fourth Amendment to the U.S. Constitution.