Supreme Court Says Law Enforcement Can't Search Mobile Phones Without A Warrant

from the that-old-4th-amendment dept

Wed, Jun 25th 2014 10:53am — Mike Masnick

Following this morning's disappointing Aereo ruling, the Supreme Court also released its ruling in the Riley/Wurie cases that examine whether or not the police can search through your mobile phone without a warrant. As we've discussed, both the Riley and Wurie cases basically deal with the same issue, though one (Riley) involves a smartphone, while the other (Wurie) is about a more old-fashioned flip phone. We had significant problems with the government's arguments in defending such warrantless searches and so did the Supreme Court, which has made it clear that police cannot search phones without a warrant.

In short, the Supreme Court actually believes in the 4th Amendment. This ruling is likely to become a very key one in a number of other upcoming questions about where the 4th Amendment applies to new technologies. The Court recognizes that existing precedent allows for searches of physical containers, but thankfully declines to accept the government's argument that searching digital devices is the same thing. First, it notes that a big part of the reasoning that allowed the search of physical containers was to make sure there weren't any dangerous weapons. Here (despite the claims of some rather confused police) the Court realizes this is ridiculous.

Digital data stored on a cell phone cannot itself be used as a weapon to harm an arresting officer or to effectuate the arrestee’s escape. Law enforcement officers remain free to examine the physical aspects of a phone to ensure that it will not be used as a weapon—say, to determine whether there is a razor blade hidden between the phone and its case. Once an officer has secured a phone and eliminated any potential physical threats, however, data on the phone can endanger no one.

The ruling basically says that if the data on the phone is important, law enforcement can go get a warrant and then do the search later. It's not an emergency situation that needs to be viewed immediately. The court completely brushes off the argument from the government that remote wiping capability means content searches may be urgent by basically saying that it's not likely to happen very often or to be much of an issue. In short, this hypothetical situation of remotely wiping phones isn't likely to be a real problem -- and notes that police have alternative ways to deal with that hypothetical "risk."

The court digs into just how different a digital device is than a physical container, and how the implications for allowing a search would be extreme.

Cell phones differ in both a quantitative and a qualitative sense from other objects that might be kept on an arrestee’s person. The term “cell phone” is itself misleading shorthand; many of these devices are in fact minicomputers that also happen to have the capacity to be used as a telephone. They could just as easily be called cameras, video players, rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps, or newspapers.

One of the most notable distinguishing features of modern cell phones is their immense storage capacity. Before cell phones, a search of a person was limited by physical realities and tended as a general matter to constitute only a narrow intrusion on privacy.... Most people cannot lug around every piece of mail they have received for the past several months, every picture they have taken, or every book or article they have read—nor would they have any reason to attempt to do so. And if they did, they would have to drag behind them a trunk of the sort held to require a search warrant in Chadwick, supra, rather than a container the size of the cigarette package in Robinson.

More important than that is how this impacts your privacy:

The sum of an individual’s private life can be reconstructed through a thousand photographs labeled with dates, locations, and descriptions; the same cannot be said of a photograph or two of loved ones tucked into a wallet. Third, the data on a phone can date back to the purchase of the phone, or even earlier. A person might carry in his pocket a slip of paper reminding him to call Mr. Jones; he would not carry a record of all his communications with Mr. Jones for the past several months, as would routinely be kept on a phone.

Finally, there is an element of pervasiveness that characterizes cell phones but not physical records. Prior to the digital age, people did not typically carry a cache of sensitive personal information with them as they went about their day. Now it is the person who is not carrying a cell phone, with all that it contains, who is the exception.

And, from that, the court notes, the world with smartphones is a very different world:

In 1926, Learned Hand observed ... that it is “a totally different thing to search a man’s pockets and use against him what they contain, from ransacking his house for everything which may incriminate him.” ... If his pockets contain a cell phone, however, that is no longer true. Indeed, a cell phone search would typically expose to the government far more than the most exhaustive search of a house: A phone not only contains in digital form many sensitive records previously found in the home; it also contains a broad array of private information never found in a home in any form— unless the phone is.

Furthermore, the court notes that it's not just the storage on the phone that's at issue, but the fact that most phones reach out into the cloud:

To further complicate the scope of the privacy interests at stake, the data a user views on many modern cell phones may not in fact be stored on the device itself. Treating a cell phone as a container whose contents may be searched incident to an arrest is a bit strained as an initial matter.... But the analogy crumbles entirely when a cell phone is used to access data located elsewhere, at the tap of a screen. That is what cell phones, with increasing frequency, are designed to do by taking advantage of “cloud computing.” Cloud computing is the capacity of Internet-connected devices to display data stored on remote servers rather than on the device itself. Cell phone users often may not know whether particular information is stored on the device or in the cloud, and it generally makes little difference.

The ruling then walks through and rejects each of the attempts by the government to offer up ways in which it should be allowed to search phones. One important one involves the government's argument that the ruling in Smith v. Maryland (which we've discussed a lot -- covering how there's no privacy expected in data handed to third parties) means retrieving the phone's call log is permitted. However, here the court notes this is not the same thing.

We also reject the United States’ final suggestion that officers should always be able to search a phone’s call log, as they did in Wurie’s case. The Government relies on Smith v. Maryland,... which held that no warrant was required to use a pen register at telephone company premises to identify numbers dialed by a particular caller. The Court in that case, however, concluded that the use of a pen register was not a “search” at all under the Fourth Amendment. .... There is no dispute here that the officers engaged in a search of Wurie’s cell phone. Moreover, call logs typically contain more than just phone numbers; they include any identifying information that an individual might add, such as the label “my house” in Wurie’s case.

The court also -- importantly -- highlights how attempts by the government to claim that looking through photographs on a phone is "analogous" to looking through photos in a wallet are not, in fact, analogous:

But the fact that a search in the pre-digital era could have turned up a photograph or two in a wallet does not justify a search of thousands of photos in a digital gallery. The fact that someone could have tucked a paper bank statement in a pocket does not justify a search of every bank statement from the last five years. And to make matters worse, such an analogue test would allow law enforcement to search a range of items contained on a phone, even though people would be unlikely to carry such a variety of information in physical form.

That tidbit seems like it could be quite useful in future cases in which the government defends its collection of bulk data. That said, the court does note (in a footnote clearly directed at this issue) that this ruling is not about such bulk collections:

Because the United States and California agree that these cases involve searches incident to arrest, these cases do not implicate the question whether the collection or inspection of aggregated digital information amounts to a search under other circumstances.

That said, the framework discussed in the ruling does, quite strongly, suggest that the Supreme Court will be fairly skeptical towards the government's defense of bulk collections. Now we just need to wait for a case challenging those programs to actually reach the Court.

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Filed Under: 4th amendment, digital, law enforcement, mobile phones, privacy, supreme court

38 Comments

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DannyB (profile), 25 Jun 2014 @ 11:18am

Supreme Court consistency - the bigger picture
It may seem like this cell phone warrantless searching decision and the Aereo decision are inconsistent. But they are not.

Cell phone privacy affects the powerful and entrenched, and this decision protects their interests.

The Aereo decision also protects the interests of the powerful and entrenched.
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Michael, 25 Jun 2014 @ 11:19am

The sum of an individual�s private life can be reconstructed through a thousand photographs labeled with dates, locations, and descriptions

Don't worry, that's just meta-data.
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Anonymous Coward, 25 Jun 2014 @ 11:35am

In his opinion, Roberts writes, "A cell phone search would typically expose to the government far more than the most exhaustive search of a house: A phone not only contains in digital form many sensitive records previously found in the home; it also contains a broad array of private information never found in a home in any form..."

Seems to me he just elevated the privacy concerns of a cell phone search above that of a search of a home. For the entire history of the US, your home was the legal go-to pinnacle of privacy. So, for a CJ to accurately understand (and then rule) that the privacy concerns of your cellphone far exceed that of your home is a pretty effin' big deal.
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Anonymous Coward, 25 Jun 2014 @ 11:37am

Re: Supreme Court consistency - the bigger picture
Yea, I nearly fell out of my chair when I read this!!! Until I read the Aereo decision shortly after.

I would agree... they are only for protecting themselves and preserving their little bad door deals they think they are hiding from everyone.

Everyone knows... they just don't seem to give a flying bleep about the important stuff. Things will change soon though. Once enough conservative types are put out of jobs because of the influx of illegals then the only time they will have on their hands will be to think about how they can use that gun lying in the closet, gun rack, or safe to set things right. Give it some time... the general left is hell bent on starting a war it seems.
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Anonymous Coward, 25 Jun 2014 @ 11:59am

Shouldn't we wait a while to be sure? The corrected version will probably be quietly released sometime when they realize they mistakenly released some drunken scribblings.

(Per
https://www.techdirt.com/articles/20140612/16422927560/quick-hack-will-now-alert-peo ple-when-supreme-court-quietly-changes-rulings-its-site.shtml
and the article linked within re rulings being reissued)
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FarSide (profile), 25 Jun 2014 @ 12:08pm

data on the phone can endanger no one.

Obviously he's never read Snow Crash...
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Anonymous Coward, 25 Jun 2014 @ 12:15pm

Re:
I don't think he intends that to be taken as an elevation over privacy in the home so much as he intended it to be taken that they are every bit as equal in deserving of 4th amendment protections.
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AricTheRed (profile), 25 Jun 2014 @ 12:26pm

Just as I suspected!
Even a broken clock is right twice per day!

The supreme court has validated this statement by adding... "Even if it is digital and flashing 12:00"
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RonKaminsky (profile), 25 Jun 2014 @ 12:26pm

Smells like cloud storage requires a warrant
Cell phone users often may not know whether particular information is stored on the device or in the cloud, and it generally makes little difference.
Another "like a duck"-like ruling, but this time it seems to pull the carpet out from under the use of Smith vs. Maryland for accessing cloud storage. The same, unfortunately, can't be said about most email (i.e., email older than 180 days), since that was explicitly allowed by Congress in the ECPA in the '80s.
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Anonymous Coward, 25 Jun 2014 @ 12:49pm

Re: Re:
To me, his language, "...far more than the most exhausted search of a house..." makes it pretty clear that he considers a cellphone search much more invasive than that of a home. I read that as an elevation of one over the other. However, to your point, I do not think he means to diminish the importance of the privacy of the home.

...in any case, it's hard to view this ruling as anything but a huge win. :)
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Anonymous Coward, 25 Jun 2014 @ 1:03pm

Re: Smells like cloud storage requires a warrant
Even so, it could still be a violation of the 4th amendment. Just because congress passes a law doesn't mean it's constitutional
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Personanongrata, 25 Jun 2014 @ 1:31pm

Golf clap.
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Anonymous Coward, 25 Jun 2014 @ 1:35pm

Re: Re: Supreme Court consistency - the bigger picture
Please consider dropping the Dem/Rep/Lib/Con (and other such nonsense) as a factor when evaluating these issues. Those are mostly smoke-and-mirror concepts used to keep the populous fighting among themselves and distracted from the only issues that "they", as you put it, are truly concerned with - issues of money and power.

Instead, seek out reliable information sources, recognize vested interest and propaganda wherever/whenever it occurs, and then use your best reasoning to form your opinions. Your focus should ultimately be on the merits of the statements, not who made them.

Also, if you're interested, here's a great explanation of who "they" are and what it is they are up to.
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Anonymous Coward, 25 Jun 2014 @ 1:39pm

Any confirmation on how this affects tablets, laptops, and other non-baseband equipped mobile devices? It may seem like splitting hairs but we know law enforcement will try anything to avoid having to get a warrant.
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Lurker Keith, 25 Jun 2014 @ 2:20pm

The 4th Amendment to the United States of America
It lives! It lives! *cue Robot Chicken music*
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alanbleiweiss (profile), 25 Jun 2014 @ 2:25pm

DOJ Horrific Response
Quoted from a CNN article on the ruling:

"We will make use of whatever technology is
available to preserve evidence on cell phones while seeking
a warrant, and we will assist our agents in determining
when exigent circumstances or another applicable exception
to the warrant requirement will permit them to search the
phone immediately without a warrant," Canale said. (Canale
is from the DOJ)

There you go. Yeah, fine. I read that as meaning "We're going to find ways to help law enforcement get around this"

So as far as I'm concerned, the DOJ still does what it wants and conspires with others to ignore the constitution.
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Lurker Keith, 25 Jun 2014 @ 2:35pm

Re:
This paragraph should expand this ruling to ALL multi-function digital devices w/ massive storage, especially computers:

Cell phones differ in both a quantitative and a qualitative sense from other objects that might be kept on an arrestee�s person. The term �cell phone� is itself misleading shorthand; many of these devices are in fact minicomputers that also happen to have the capacity to be used as a telephone. They could just as easily be called cameras, video players, rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps, or newspapers.
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Anonymous Coward, 25 Jun 2014 @ 2:49pm

Simple, pop them in a Faraday cage
Evidence preservation (in the face of remote wipe capability) of data on a phone is about as simple as it gets with no need to actually review the contents sans warrant.

It's called a Faraday cage and it can easily be woven into a small bag. In short, there is no valid excuse.

https://en.wikipedia.org/wiki/Faraday_cage
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John Fenderson (profile), 25 Jun 2014 @ 3:05pm

Re: Simple, pop them in a Faraday cage
"It's called a Faraday cage and it can easily be woven into a small bag."

Yeah, not so much, really. A phone can easily be set up so that if it fails to receive a "keep alive" signal, such as a special SMS message, on a regular schedule it will wipe itself clean.

I don't do this on my phone, but I do have several SMS-driven functions such as taking a photo and texting it along with a GPS reading to a preset number in case my phone is lost or stolen.

Better than a faraday cage is to yank the battery, if possible. There are other relatively foolproof methods of preventing the phone from acting too, but they depend on the kind of phone it is.
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That One Guy (profile), 25 Jun 2014 @ 3:14pm

Re: DOJ Horrific Response
No, it's not just you, that seems to be saying pretty clearly that they still believe they have the right to search a phone/device without a warrant, just as long as they can come up with a good enough(to themselves) excuse for it.
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Anonymous, 25 Jun 2014 @ 3:21pm

On another news site, it said that police couldn't search the cell phone of A PERSON THEY ARREST without a warrant. IF that's true, that's pretty scary, because that would mean that warrantless searches of cell phones of non-arrestees would be permissible.
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alanbleiweiss (profile), 25 Jun 2014 @ 3:33pm

Re: Simple, pop them in a Faraday cage
I'm cyincal. I take it to mean "We'll just plug a USB device in and scrape the entire contents of the phone before we get a warrant"...

Or of course other situations will be done in the name of national security or some bullshit.
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Yeah Right, 25 Jun 2014 @ 3:40pm

I wouldn't get your hopes up too much.

and notes that police have alternative ways to deal with that hypothetical "risk."

Like copying everything on the phone and storage chip? The police can then apply for a warrant later. But they still have your stuff in the meantime.

It's the 'it's only a copy so you haven't lost anything' argument turned against citizens this time, not big content.
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Yeah Right, 25 Jun 2014 @ 3:43pm

Re: Re: Simple, pop them in a Faraday cage
Alan, I think you got it in one.
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Anonymous Coward, 25 Jun 2014 @ 5:14pm

Yay! The 4th Amendment hasn't been totally murdered by the government yet. The US Gov tried their damnedest to murder the 4th Amendment on this day, but the 4th Amendment managed to limp away.
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Anonymous Coward, 25 Jun 2014 @ 6:18pm

Re: Smells like cloud storage requires a warrant
Exactly, this seems to indicate that if a case with a direct challenge to Smith v. Maryland were to come before the court, they would likely overturn it citing it's obselecence.
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Anonymous Anonymous Coward, 25 Jun 2014 @ 6:32pm

Curious for the Lawyer types around
Are we now going to have a fight about how to craft a warrant for a cell phone search that is narrowly tailored to the specific crime of the accused?

Or will that warrant explicitly mean a hunting expedition for anything accessible by the phone, including say Internet mail, or cloud accounts, browsing history, etc.? Example what if the case is a DUI, how might Internet email apply?
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William Jackson (profile), 25 Jun 2014 @ 6:38pm

Skype
So if I use my laptop for Skype with cellular data plan, it is like my cell phone (looks like a duck); therefore, they need a warrentl at the boarder to that it.
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Anonymous Coward, 25 Jun 2014 @ 6:55pm

Re: Curious for the Lawyer types around
IANAL but a big part of the reason they hate warrants so much has nothing to do with them being a hassle to get. It's that they have to declare specifically what they want to look for, where they want to look and why in a document that is subject to scrutiny later. Their worst fear is accountability.
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Anonymous Coward, 25 Jun 2014 @ 7:09pm

Do we really need these old, apparatchick, pricks to say the obvious?
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Anonymous Coward, 25 Jun 2014 @ 7:12pm

Re:
The main issue here is the information being used against you in a criminal case whereby if you aren't arrested, that usually doesn't come into play. However, you bring a good point. The 4th amendment says people are to be "secure in their persons, houses, papers, and effects, against unreasonable searches and seizures" which doesn't necessisarily have anything to do with defending yourself against criminal prosecution. An unlawful warrantless search is a civil rights violation regardless of whether charges are filed against you or not.
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Ddc, 25 Jun 2014 @ 9:31pm

Re: Re: Re:
One thought:
Secure in person and papers.
Searching your phone could potentially search all of your papers. Even those not in your home.
Also one reason the third party doctoring is horrible law.
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Anonymous Coward, 25 Jun 2014 @ 9:38pm

Re: Re: Curious for the Lawyer types around
And why supported with what actual evidence they already have.

That, they are supposed to required to provide this.
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John Fenderson (profile), 26 Jun 2014 @ 9:45am

Re:
"It's the 'it's only a copy so you haven't lost anything' argument turned against citizens this time"

I don't see how. The issue with the searches isn't whether or not you've lost your data. It's whether or not you've lost your privacy.

I know the NSA is fond of the argument that collecting your data is OK because that doesn't count as a search. It wouldn't surprise me at all to see law enforcement agencies hopping onto that enormous loophole to evade the fourth amendment. But that doesn't make it all any less bullshit.
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John Fenderson (profile), 26 Jun 2014 @ 9:47am

Re: Re: Curious for the Lawyer types around
This is precisely correct. Actually getting a warrant isn't a hassle at all. Judges issue them pretty much automatically, and it is done quickly. The real objection to warrants is, as you say, the paper trail.
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rapnel, 26 Jun 2014 @ 10:27am

Re:
Don't look now but I think you've answered your own question.
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That One Guy (profile), 26 Jun 2014 @ 2:06pm

Re:
The fact that it's an issue at all, and one that was serious enough to warrant reaching the SC, means sadly, the answer is 'YES'.
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GEMont (profile), 26 Jun 2014 @ 10:07pm

Hurry up and wait so more....
"Now we just need to wait for a case challenging those programs to actually reach the Court."

Sincerely hope nobody out there is holding their breath in anticipation of this actually happening anytime soon... and even if it does get to court, it is highly unlikely that any real solutions will occur before the year 2020 - by which point of course, it will be far too late.
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