Cellphone privacy

The Fourth Amendment to the U.S. Constitution is crystal clear in both its language and its intent: “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.” By that standard, then, the only things left for law-enforcement officers and the courts to determine is what is reasonable and what constitutes “houses, papers, and effects.” As the U.S. Supreme Court unanimously affirmed Wednesday, cellphones are on the list, and searching them, unbidden and without a warrant, does not qualify as reasonable.

The ruling covered two cases – Riley v. California and United States v. Wurie – wherein individuals’ cellphones were searched without warrants and police found information leading to significant criminal charges. Whether the men in each case had committed the crimes in question is not the issue. What is at stake is the extent to which law enforcement can help itself, without permission or probable cause, to Americans’ most personal spaces. The Supreme Court opinion, written by Chief Justice John G. Roberts, makes it abundantly clear that cellphones qualify – as much or even more so – than homes, papers or other “effects.”

“A cellphone 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,” Roberts wrote. The opinion goes on to affirm that without a clear, compelling reason to explore this trove of private information, the government has no business snooping in it – even if doing so would aid in solving a crime. “We cannot deny that our decision today will have an impact on the ability of law enforcement to combat crime. … Cellphones have become important tools … among members of criminal enterprises and can provide valuable incriminating information about dangerous criminals. Privacy comes at a cost,” Roberts wrote.

The strength and unanimity of the ruling reflects the court’s recognition of changing times pursuant to the Fourth Amendment’s protections and places citizens’ right to expect those protections in today’s context. While those who are placed under arrest do give up some of their privacy with respect to searches – pat downs are allowed to protect officers’ safety, confiscate contraband or preserve any relevant evidence – it does not follow that an endless exploration of the arrestee’s comings, goings and associates is reasonable. “That is like saying a ride on horseback is materially indistinguishable from a flight to the moon. Both are ways of getting from point A to point B, but little else justifies lumping them together. Modern cellphones, as a category, implicate privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet, or a purse,” Roberts wrote.

The Supreme Court justices – all nine of them – did right by the Constitution in their ruling requiring a warrant to search citizens’ cellphones. While privacy comes at a cost, it is one that Americans are willing to pay, with few exceptions. Preserving that right is foundational to a free society.

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