Being secure in one’s ‘papers’ in a paperless world
If you’re pulled over, can the police access your cellphone and look through it without a warrant? The Obama Administration is asking the Supreme Court to say yes, raising numerous questions about the administration’s adherence to American notions of privacy, due process and the law.
The case that will come before the court, if it chooses to hear it, regards a Massachusetts man arrested in 2007 on suspicion of selling crack cocaine. Police went through his phone, found the address of his house, went there and discovered more drugs and guns. He was convicted but appealed on Fourth Amendment grounds, which the First Circuit Court of Appeals agreed with. Timothy Lee at the Washington Post has the rest:
The Obama Administration disagrees. In a petition filed earlier this month asking the Supreme Court to hear the case, the government argues that the First Circuit’s ruling conflicts with the rulings of several other appeals courts, as well as with earlier Supreme Court cases. Those earlier cases have given the police broad discretion to search possessions on the person of an arrested suspect, including notebooks, calendars and pagers. The government contends that a cellphone is no different than any other object a suspect might be carrying.
But as the storage capacity of cellphones rises, that position could become harder to defend. Our smart phones increasingly contain everything about our digital lives: our e-mails, text messages, photographs, browser histories and more. It would be troubling if the police had the power to get all that information with no warrant merely by arresting a suspect.
This has some eerie similarities to other recent actions by government agencies. Not least of these is the National Security Agency, which has been under fire for snooping through citizens’ private email en masse, but also the Securities and Exchange Commission, which wants freedom to demand service providers hand over all communications from an account without any sort of evaluation process normally found in the justice system.
This is not the only case going before the Supreme Court on searches through phones. While the 2007 case was on a flip phone, a 2009 incident was on a smartphone, specifically a Samsung Instinct M800. This was a more sophisticated search than the 2007 incident; here officers went through the phone’s catalog of photographs and information, without any warrant to do so.
Both of these incidents seem to be in clear breach of the Fourth Amendment’s protections against unreasonable search and seizure. In United States v. Jones, last year, the Supreme Court held that putting a GPS tracker on a car was a search under the Fourth Amendment, and thus, as George Washington University Law School professor Orin Kerr notes, “any government conduct that is a trespass onto persons, houses, papers, or effects is a Fourth Amendment ‘search.'” Of course, this raises the question of whether digital information on your smartphone count as “papers.”
I think they do.
In this increasingly paperless world, growing more and more dependent on cloud computing, our “papers” are written on computers and viewed on e-readers. We talk about digital ink and the “My Documents” folder. The Fourth Amendment protection (emphasis mine) “of the people to be secure in their persons, houses, papers and effects” was never meant to literally mean paper, it meant documents and correspondence of all citizens. This is even more important, since more than half of all Americans have a smartphone, and as Lee recognizes, these devices carry nearly all the information about our lives on them. Have someone’s phone, and you can find all you need to know about them with just a little time.
