The US Supreme Court has agreed to hear two cases in April relating to the search of cell phones. While the Court’s job is only to interpret the law, major decisions become landmarks that can change how law enforcement operates. In this way, some rulings have the same impact as a statute.
Many legal expectations we have today are based on Supreme Court decisions rather than actual laws. For example, the Exclusionary Rule, which forbids a prosecutor from using illegally obtained evidence in a trial is only a hundred years old (Weeks v. US). The Exclusionary Rule supports the Fourth Amendment rights of citizens and keeps the government from cheating to win their case.
The Fourth Amendment requires a warrant to be issued before a search can take place, but there have been exceptions to that stipulation for decades. For example, you can be patted down or frisked anytime “a police officer's experience tells him that criminal activity may be occurring” (Terry v. Ohio, 1968). Evidence found in a “stop and frisk” can be used as cause for arrest. (Did you know “stop and frisk” had been around that long?)
You and your personal effects can also be searched if you are placed under arrest, either with a warrant or without (Draper v. US, 1959). So if you are pulled over on a traffic violation and the officer learns you have a warrant for an unpaid parking ticket, he can search you, your clothes, your car, your purse, your kid’s backpack, and the gifts you were hauling to Grandma’s house to be sure you aren’t committing any other crimes. Any evidence found can be used against you in court (US v. Calandra, 1974) because your vehicle is not offered the same protection as your home (Carroll v. US, 1925).
In 1967 (Katz v. US), the Court ruled that information obtained from a listening device placed outside a phone booth without a warrant was illegally obtained because the booth user had a reasonable expectation of privacy; violating that privacy would require a warrant.
The standard set in that case is that the “right to privacy” exists when the person truly expects privacy and when society generally recognizes that expectation as “reasonable.” This matters because when a citizen expects privacy, such as in a confession booth or doctor’s office, listeners cannot be compelled to break confidentiality; without it, they can.
In an attempt to catch up with 20-year-old technology, the Texas Legislature recently passed a bill to amend portions of the Criminal Code relating to information stored electronically by “providers of electronic communications services and remote computing services.” (That’s fancy for “cell phone and internet companies,” among others.) It states that a warrant may be issued for “electronic consumer data” just like any tangible item, implying that our electronic data is private.
Information stored in your phones, computers, and flash drives has always been subject to search and seizure after a warrant is issued to retrieve it from you. Now that all that information is stored and transmitted via servers and satellites, information can be obtained from the keeper of the information. The expanded Texas law allows data to be subpoenaed even if it is stored elsewhere, such as in an internet database or the service provider’s call log.
Searchable data may include phone calls, email, text messages, Facebook posts, internet search history, private chat conversations, calendar appointments, the GPS locator in your phone or vehicle, pictures of your vacation to Maui, and purchase history from your Starbucks app.
Even phones that aren’t very smart are considerably more advanced than a Rolodex and should be granted as much protection as your mother’s maiden name. Most modern phones can provide access to bank records, credit card information, a password database, messages to your children, tracking apps for other phones on your plan, work product that may be proprietary, your personal journal, and Valentine’s pictures of your wife.
If you are arrested, the officer can search your personal effects, but whether he can search your phone in hopes of finding calls to your drug dealer or pictures of you with stolen property is the question before the Supreme Court.
Ideally, the Supreme Court would rule this year that there is no safety concern or legal reason for an officer to have warrantless access to any of those. Unfortunately, two previous decisions that will likely be used as precedent do not support such a ruling.
Mitch Miller argued in 1976 (US v. Miller) that his bank had no right or obligation to reveal his records to the government, even under subpoena, because the bank only had the records in the first place because it was required by law – not because Miller provided them. Justice Powell ruled that such records were not Miller’s private papers, but business documents belonging to the bank; therefore, the bank must comply with the subpoena.
Using this reasoning, the Court could decide any and all information available to your phone provider, including the content of text messages and emails, could be requested by court order.
Three years later, the Court ruled in Smith v. Maryland that the petitioner had no right to privacy when he made a phone call from his home. Smith knew the record of that phone call was “exposed” to phone company equipment in the normal course of business, eliminating his right to privacy.
Now that all communications are digital, this precedent suggests that they, too, are “exposed” to the phone company equipment and become their business records instead of your personal documents. Between these two rulings, you have no expectation of privacy except when speaking face-to-face in your own home. All other communications belong to your service company.
The Court is also likely to conclude that if sufficient evidence exists to place a person under arrest, all accessible electronic data related to that person, including information stored in the person’s cell phone, may also be searched and seized without a warrant in the same manner as any physical items.
If the past is any indicator of the future, the Supreme Court will likely continue its position as the Approval Panel for Government Intrusion instead of the defender of the Constitution. I’d give you my opinion on that, but well, that’s private.