The Supreme Court has been doing a pretty good job of resisting government arguments that interpretation of the Fourth Amendment should ignore the implications of modern technology.
Two years ago, for example, the government argued to the Court that using a GPS device to track an automobile 24/7 for nearly a month was no different from assigning a police officer to tail someone. Following a person on the public streets was never considered a “search” under the Fourth Amendment, the government stressed, so using a GPS device to do the same should not be subject to Constitutional limits either. While the Justices split on their reasoning, not a single one accepted the government’s invitation to ignore the precision and persistence of GPS technology. Instead, all the Justices agreed that attaching a GPS device to a car and tracking it for a prolonged period, even on the public streets, was a search and therefore covered by the Fourth Amendment.
This year, the Court is being urged by the government in a pair of cases to limit privacy rights by extending to cell phones another doctrine from centuries past, the “search-incident-to-arrest” exception to the Fourth Amendment’s warrant clause. As a general rule, the Fourth Amendment requires police to obtain a warrant from a judge before conducting a search, including before asking you to empty your pockets. However, there has long been an exception to this rule, allowing the police, when they arrest someone, to search the arrestee and any items in his immediate possession and to seize any weapons or evidence that the person might have.
Yesterday, CDT joined the Electronic Frontier Foundation in filing a brief in the Supreme Court arguing that the search-incident-to-arrest exception should not be extended to permit police to conduct warrantless searches of cell phones or other digital storage devices that a person has when arrested. Of course, the police can seize the device in order to protect any evidence on it, but in order to start scrolling through messages or photos or activating apps, our brief argues that the government must obtain a warrant, unless another exception, such as the emergency exception, applies.
Our brief was written by Andy Pincus, of Mayer Brown, one of the leading Supreme Court litigators today, and by Eugene Fidell and the Yale Law School Supreme Court Clinic. It points out the many ways in which the cell phone is fundamentally different from other possessions that persons traditionally carried with them when the search-incident-to-arrest doctrine was first articulated. Salient among these differences is the sheer volume and diversity of information that can be stored on a phone, even one not fitting the elastic definition of a smartphone.
The government’s rationale would apply not only to cell phones, but also to other digital storage devices, which include, of course, laptops, tablets, thumb drives, and cameras. The government tries to limit the implications of its claims, suggesting that it will not access any information stored on a network, but our brief notes that with many cell phone apps that this is an increasingly meaningless or indiscernible distinction.
As we point out in our brief, the search-incident-to-arrest doctrine was never unlimited: When police arrest a person inside his home, they cannot conduct a warrantless search of the entire house. Nowadays, people carry with them on their portable digital devices far more information than could have been stored in a home before. Our brief urges the Court to reject the government’s “mechanical invocation of precedent divorced from context.” Recognizing technology’s significance means that the government’s search of a person’s entire life should require a warrant, absent emergency circumstances.
The Supreme Court will hear oral argument in the two cases on April 29, with a decision by the end of June.