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Government Surveillance

Positive Signs as Supreme Court Considers Warrantless Cellphone Searches

This Tuesday, the Supreme Court took up the issue of warrantless searches of cellphones and other portable electronic devices seized incident to an arrest.  The Court heard arguments in Riley v. California and United States v. Wurie, in which CDT had submitted an amicus brief earlier this year.  The Justices’ focus at the oral argument on the significant privacy ramifications of the case gives hope for a positive ruling, but it is unclear how bright a line the Court will draw.

[Listen to Jake discuss the case on The Agenda on SiriusXM Progress]

A “Person’s Whole Life” In the Palm of Your Hand

One of the most important elements of this case was also the most discussed during the oral arguments:  The rules for searches of electronic devices incident to arrest will affect large numbers of Americans. As several of the Justices noted, commonplace infractions such as failing to use a seatbelt or jaywalking can lead to an arrest.  The search incident to arrest exception to the warrant requirement does not just affect gang leaders and hardened criminals – it directly impacts the privacy of ordinary Americans across the country.

The Court also seemed well aware of the profound privacy implications of the digital and mobile revolutions.  The Supreme Court often takes flak for not being sufficiently tech savvy, but the Justices clearly understood that phones are used regularly to store private information.  Their questions were filled with references to phones holding thousands of emails, text messages, and photos.  As Chief Justice Roberts aptly stated, “The smartphone has everything …. It’s got the persons whole life.”

The Court’s recognition that it is possible, practical, and in fact expected that individuals store huge amounts of sensitive information on phones – paired with their focus on how their ruling will impact average Americans – was a major win for privacy advocates, and makes it appear unlikely that the government will receive a blanket exception to search phones and other electronic devices without a warrant.

The Court Should Avoid A “Middle Ground” That Actually Offers No Protection At All

While the Court seems unlikely to endorse a full exception to the warrant requirement, its discussion of certain balancing factors raised the possibility of a narrowed exception.  However, these “middle ground” options would fail to adequately protect privacy.

The Court raised the idea of only allowing police to search the parts of a phone that are believed to provide information relating to the crime.  This concept has numerous problems.  First, it assumes that the functions of a phone’s programs are self-apparent.  In fact, many apps have multiple functions.  How could police evaluate the reasonableness of looking at the millions of unique and often obscure apps used on smartphones – would it be reasonable for an officer unfamiliar with online dating to assume that Tindr might contain information on arson, or for police to assume that secrecy based apps like Silent Circle must involve illicit activity?  Moreover, there will almost always be some basis to suspect that certain applications – namely email and texting apps and photo albums, which are the one most likely to contain very large amounts of sensitive personal data – could contain evidence or discussion of a crime at issue.

Several Justices also discussed limiting the warrant exception to serious crimes to prevent fishing expeditions by arresting individuals for minor infractions such as jaywalking.  However, the Court seemed unable to find any clear line that it could draw to create such a rule.

Permitting the police to search a phone only under certain circumstances will actually open a can of worms that would be impossible to enforce in practice, effectively removing any protection for electronic devices seized incident to arrest.  Furthermore, there is no reason to take such half measures, because there is no law enforcement need to search a phone prior to obtaining a warrant.

Encrypted and Wiped Data: Gone But Not Forgotten

The government’s chief argument for warrantless searches of cellphones is risk of destruction of evidence.  However, the two ways in which a phone’s data could be “destroyed” – via encryption or remote wipe – don’t hold up as legitimate problems.

First, the government claimed it needs the ability to search a phone immediately, because if police wait to obtain a warrant the phone might go into “locked” mode.  However, in numerous other cases the government is arguing that it has the power, with a warrant, to force a user to unlock or decrypt his device. Further, even if the user refuses to comply, the locking technology can be overcome.  A standard four-digit phone lock can be broken in a matter of minutes by law enforcement, and phone operating-system providers are likely to provide assistance in unlocking a device and unencrypting data if police have a warrant.

Second, the government contended that the possibility of remotely wiping a phone necessitates an immediate and unwarranted search.  This concern is overstated – a remote wipe can be prevented or reversed with relative ease.  In terms of prevention, a remote wipe signal can be blocked by placing a phone in a “Faraday bag,” a small bag that blocks radio transmissions (and, in fact, a few sheets of aluminum foil do the trick).  Faraday bags are small, affordable, and simple to use – this is not a technology reserved for Batman’s utility belt.  Even if a remote wipe signal did successfully clear out a phone’s data, this measure could likely be reversed.  “Wiping” an electronic device does not actually involve removing data, but rather it simply encrypts the data, rendering it inaccessible.  And for the reasons mentioned above – notably compelled decryption using a warrant and company assistance – this type of encryption is an obstacle that law enforcement can overcome.

There is no need to permit warrantless search of cellphones.  Instead, there is a strong privacy interest in applying the warrant requirement to such searches.  This interest is one shared by all Americans, involving their most intimate conversations, photos, and documents.  The Supreme Court should recognize this and hold that the search incident to arrest exception does not permit the warrantless search of electronic devices.