Government Plays Fast and Loose with Technology in Supreme Court Cell Phone Cases

The U.S. Supreme Court earlier this week heard oral argument in two cases involving whether the police, after arresting someone, can search his or her cell phone without a search warrant. Although the police have been allowed to do a limited search of a person after they’ve been arrested, this exception to the Fourth Amendment’s warrant requirement was never intended to cover the massive amounts of sensitive information on a cell phone. But as the oral arguments made clear, the government is relying on dangerous misconceptions about cell phone technology in an attempt to justify a significant privacy intrusion.

The Issues Before the Supreme Court

After the police arrest someone, they're allowed to search the arrestee's person and the items within their immediate control without a search warrant for two reasons: first to make sure the person is not hiding a weapon that can harm officers, and second, to ensure that any evidence that could be lost or destroyed is secured. Under the search incident to arrest exception, the police do not need to make any showing that there were actual threats to officer safety or evidence destruction. That is, if the item they want to search is on the person (meaning in their pockets or purse) or within reaching distance at the time of arrest, the police get to search, period.

At issue before the Supreme Court is how this doctrine applies to the modern cell phone. Both cases involve a police search of a cell phone after they had arrested someone for a crime unconnected with the phone. In Riley v. California, the California appeals court found a warrantless search of a smartphone appropriate under the exception, ruling that the nature of the item to be searched —and ultimately the amount of information carried on a cell phone—was irrelevant to deciding whether the exception applied. But in United States v. Wurie, the federal First Circuit Court of Appeals found the breadth of information stored on a cell phone did matter and the exception didn't apply to a search of a simple flip phone. The Supreme Court had ruled in 1973 that police could search a pack of cigarettes found in an arrestee's jacket pocket and so to some extent, the issue in front of the Court now was whether a cellphone was similar enough to a pack of cigarettes that the police could search it too. 

Together with the Center for Democracy and Technology, we filed amicus briefs in both Riley and Wurie, arguing that the amount of information stored on a modern cell phone is so great, that it was nothing like a pack of cigarettes and should be off limits to police without a search warrant. In other words, the technology matters for the constitutional issue before the court.

Mischaracterizing the Technological Reality

At the argument on Tuesday, it was clear that the governments of both California and the United States agreed that technology mattered for the constitutional issue too, but in a vastly different way. First, California's Solicitor General argued that when you carry a cell phone, you assume the risk that your data could be searched at any time: 

But what we are saying is that people do make choices, and those choices have consequences. And the consequence of carrying things on your person has always been that if you are arrested, the police will be able to examine that to see if it is evidence of crime. 

In a country where people can be arrested for not wearing a seat belt and attempts to count the number of federal criminal laws (let alone state criminal laws) have failed because there are too many to count, everyone's phone is fair game under this premise. But taking advantage of technological advancements shouldn't require a person to sacrifice constitutional privacy protection, especially when a cell phone carries far more information than any person could every physically carry on them in non-digital form.

More problematic than California's bogus assumption of risk theory was the federal