Some Rare Good News From the Supreme Court

We finally got some good news from the US Supreme Court today. Considering that the Court has more or less routinely punched enough exceptions into the 4th Amendment to almost make it feel like a remnant from a different time. But, today the Court ruled unanimously that police don’t have the power to search through cell phones incident to an arrest.

Yeah, didn’t know they could do that, did you?

Basically, the State of California and the US Government were arguing that they should have the power to search through all cellphone call logs and other data incident to arresting someone, just as they’re allowed to search a car, or empty your pockets. Because, you know, officer safety. And, hey, there might be evidence of further crimes on it.

Fortunately, the Supreme Court called bullshit on that idea today. From the decision:

(2) A conclusion that inspecting the contents of an arrestee’s pockets works no substantial additional intrusion on privacy beyond the arrest itself may make sense as applied to physical items, but more substantial privacy interests are at stake when digital data is involved.

(i) Cell phones differ in both a quantitative and a qualitative sense from other objects that might be carried on an arrestee’s per- son. 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.

[..]

(d) It is true that this decision will have some impact on the ability of law enforcement to combat crime. But the Court’s holding is not that the information on a cell phone is immune from search; it is that a warrant is generally required before a search. The warrant requirement is an important component of the Court’s Fourth Amendment jurisprudence, and warrants may be obtained with increasing efficiency. In addition, although the search incident to arrest exception does not apply to cell phones, the continued availability of the exigent circumstances exception may give law enforcement a justification for a warrantless search in particular cases.

(Edited for formatting, brevity, removed citations, emphasis added)

I have to admit that I was worried about this one. Each of the justices is old enough to qualify for AARP membership and though they might have cell phones, I wondered if they were more like my grandmother when it came to using them–they like the big buttons on the screen because it’s easier to dial with arthritic fingers–than almost everyone else.

I’m also not thrilled with the last paragraph. It seems to me that they left a hole large enough to drive a truck through, when they leave the “exigent circumstances” in place. But… supposedly, this was to address the “ticking bomb” or kidnapper scenarios, to which I guess I just have to say, “Well, something is better than nothing…”

Still, I was glad to see that this was unanimous. I was even happier to see that Scalia didn’t see the petitioner’s just as drug dealers either to object (something he does frequently).

All in all, a good day for digital privacy. Thank you, Supreme Court.

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