Smartphones and the Future of the Fourth Amendment

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. (Amendment IV)

The SCOTUS has just finished hearing arguments in the cases of Riley v. California and United States v. Wurie, two cases which both deal to varying degrees with the same question: Does a police search of cell phone records without a warrant constitute a violation of the Fourth Amendment?

In United States the state has taken the position that, since the 18th-century, it has been standard practice for police officers to conduct full searches of arrestees “including the examination of objects, containers, and written material,” that the Court’s rulings since 1914 have supported categorical search authority, and that a potential danger exists that if unlocked smartphones are not searched right away officers may not be able to recover the information they contain.

The Petitioner in Riley argues against this line of reasoning stating that “smartphones contain truly massive quantities of information – ‘the equivalent of [carrying in one’s pocket] the cabinets, desks, bookshelves, and bureaus in an 18th-century home,’ Br. of ACLU 6, as well as one’s entire office, library…random thoughts and wonders, and collections of medical, financial, and consumer records.” Further, that the state has intentionally interpreted applicable case law in a way that expands its search authority in ways never intended by the Court, and that there exist other acceptable means whereby police can ensure the data on the smartphones they recover is preserved (e.g., Faraday bags, placing the phone in “airplane mode”, et al.).

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Several interested parties have weighed in on these cases, most notably the Cato Institute, American Civil Liberties Union (ACLU), and the Electronic Frontier Foundation (EFF).

In its amicus briefs, the Cato Institute argues against the precedent of an “expectation of privacy” (Katz v. United States, 389 U.S. 347 (1967)) typically cited in these types of cases, and instead favors a close interpretation of the intention of the Founders and the specific wording of Amendment IV itself. Cato argues that the case law relevant to this issue often improperly conflates the meaning of the terms “search” and “seizure” when describing what law enforcement personnel do upon making an arrest, i.e., it views them as one and the same. Further, a smartphone is properly considered an “effect” under Amendment IV, and the files stored on them are “papers” distinct from the phone itself, which becomes a sort of digital filing cabinet.

In a similar fashion, the EFF has argued that because smartphones contain sensitive information that people formerly kept elsewhere (i.e., not on their person), the “search-incident-to-arrest exception” offered by the state is not applicable and cannot be used to support categorical search authority. The ACLU concurs that warrantless search of smartphones “undermines fundamental Fourth Amendment principles.” The ACLU demands a rule prohibiting such searches as opposed to previously accepted approaches which are considered vague and overreaching.

While the final outcome of Riley and United States remains unclear, what is clear is that these cases are a harbinger of the digital future that has arrived at our stoop and has, often without our knowledge or explicit consent, entered our lives in very invasive ways. But we should continue to have faith in the versatility of our founding documents and the profound minds wherein they originated, for while these individuals may not have been able to envision a world where many can conduct the business of everyday life—balancing their checking account, filing their taxes, updating their families about their current affairs, transferring money to friends, setting appointments with and transmitting medical information to physicians—all while riding a subway train to work, the promulgation of the Bill of Rights, and specifically Amendment IV, is evidence that they were certainly aware of the dangers present in allowing state authorities too much leeway in peering into citizens’ personal affairs.

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