The law evolves along with technology.
For example, early strict liability law concerned non-domestic or exotic animals: an owner of a lion, bear, or other wild beast would be strictly liable for damage caused by such an animal regardless of degree of care exercised by the owner. Later legal principles concerning strict liability were applied to inherently dangerous activities (i.e. blasting) and products liability.
Administrative law and delegation of congressional authority eventually became acceptable as our society became more advanced and specialization was needed to address various issues. These are just a couple of examples; privacy law should also evolve along with social norms and technology.
It is time to face the reality of the expectation of privacy associated with a smart phone or tablet.
Not too long ago, the United States Supreme Court considered two cases concerning whether police need warrants to conduct a search of a cellular phone incident to arrest. In one case, Riley v. California, an appellate court upheld the search of a person’s smart phone after he was pulled over for expired tabs and after presumably being arrested after loaded guns were found in the car. The phone search revealed entries showing the arrestee’s involvement with a gang. In the second case, United States v. Wurie, a federal appellate court suppressed evidence obtained by police after the arrest of a suspected drug dealer.
Generally, police get a free search of a person who is subject to a valid arrest supported by probable cause. But how far can this go?
Recently, in Missouri v. McNeely, the United States Supreme Court held that police must have a warrant to draw blood from one who is under arrest for DUI unless exigent circumstances exist beyond mere testing of alcohol levels. That is, regardless of the fact that there was a DUI arrest, police must generally obtain a warrant before making such a serious intrusion. The McNeely court discussed how a warrant is needed to search a home and no less could be expected when drawing blood. What about a cell phone?
Today’s smart phones contain vast amounts of data and personal information: relationship statuses, private messages on Facebook, private pictures, videos, text messages, etc. The expectation of privacy associated with the phone is unlike never before. Thus, it seems logical that the modern smart phone should be provided as much protection as the home or one’s blood.
Justice Kagan was correct to note that “most people now do carry their lives on cellphones.”
You see, the content of smart phones often contains data that may be protected by the first amendment. Generally, very specific situations are needed to seize items protected by the first amendment. A search of the content of the cell phone without any more justification other than ‘incident to arrest’ seems to permit an open-ended fishing expedition, which is not compatible with the requirements for particularity or probable cause.
A search as part of an arrest was generally based on the need to prevent destruction of evidence, need to remove weapons for officer safety, and the need to ensure that dangerous or harmful items do not make their way into jails. Indeed, most of the argument in the two recent cases heard by the Supreme Court concerned whether searches of phone content is necessary for officer safety. So far, the officer safety rationale does not appear to apply to the content or data in the smart phone, as the content likely will not cause immediate harm. Seizure of the phone itself (not a search through its contents) is sufficient to ensure officer safety.
The destruction of evidence rationale does not seem to justify a search of cell phone content, either.
If the police can simply seize the phone itself incident to arrest, why can’t they later obtain a warrant? This would promote a balance between privacy rights and crime deterrence. The warrant requirement would make sure there is a nexus between the crime under investigation and the content of the phone, as opposed to enabling a fishing expedition.
On the other hand, if probable cause exists to believe that evidence of the crime would be found in the phone, then the officers would be able to get a search warrant. The warrant requirement might not be a “novel” approach. But it works. That is why it is in the constitution. There is no need to propose different standards as the Justices seemed to. The major-minor crime dichotomy the Justices seemed to play around with should take a back seat to the warrant requirement.
Justice Alito asked why digital information should be treated differently from its tangible equivalent. I would ask why should the content of a modern smart phone be treated different than the content on one’s computer located in his or her home? Indeed, the smart phones of today are likely more powerful and may be able to hold more data than the PC of yesterday.
It is arguable that the expectation of privacy is even greater than your PC.