The U.S. Supreme Court may soon address an issue it has carefully avoided until now: Just how much privacy do Americans enjoy in the information contained within and emanating from their cellphones?
“This issue is clearly on its way to the Supreme Court — probably this upcoming term,” said Orin S. Kerr, a professor at George Washington University Law School in Washington and a criminal procedure expert.
Cellphones have become as ubiquitous as they are increasingly “smart.” Ten years ago a person’s cellphone was used simply for making calls and sending text messages, but today such a phone serves as a miniature personal computer, address book, camera, file cabinet, social media conduit, email inbox and more — all wrapped into one pocket-sized package.
Because of the wealth of personal information most cellphones hold, defense attorneys and civil liberties advocates argue that police searches of physical phones as well as the collection of location data emitted from the phones should require a warrant, just as the search of a person’s personal computer or the substance of phone or email conversations would.
But law enforcement groups and prosecutors say that the expectation of privacy in messages that can be easily viewed on a phone without much intrusion, or that have been voluntarily shared with service phone providers, is much lower than with other closed containers.
The Supreme Court has been wary of taking on a full Fourth Amendment privacy analysis of personal mobile devices. In the 2010 case of City of Ontario v. Quon, the justices had a chance to decide whether employees have a privacy interest in the messages they send on work-issued mobile devices. But they sidestepped that issue by ruling that the employer’s acquisition of employees’ text message transcripts was reasonable under the circumstances, thus avoiding the privacy question.
“A lot of people thought that Quon would be a major decision about the expectation of privacy in emerging technologies,” said Jeffrey B. Welty, professor at the UNC School of Government in Chapel Hill, N.C. “But the court ultimately resolved it in a narrow way. It didn’t really chart a new course in the law.”
The justices expressed more of a willingness to confront the issue of privacy in a digital age in the GPS tracking case U.S. v. Jones, which held that the installation and use of a GPS device by police to track a car’s movements constituted a search under the Fourth Amendment.
While the five-member majority based its conclusion on a centuries-old common law trespass analysis, five justices expressed a willingness in concurrences to engage in a privacy analysis.
Searching phone contents
Several cases percolating in the lower courts could soon give the justices the chance to tackle privacy questions head on. The issue that could reach the justices as early as next term is whether and to what extent police may conduct warrantless searches of cellphone contents incident to a lawful arrest. While the majority of state and federal courts have allowed police to conduct some sort of search of phones carried by arrestees, the variety of their responses has led some judges to ask for Supreme Court guidance.
“I think the preferable course is to speed this case to the Supreme Court for its consideration,” wrote 1st U.S. Circuit Court of Appeals Chief Judge Sandra L. Lynch in a July 30 order denying rehearing in Wurie v. U.S, which created a bright-line rule barring the warrantless search of arrestees’ cellphones. “The decision in this case creates a circuit split [and] state courts similarly are divided. As the government points out, the differing standards which the courts have developed provide confusing and often contradictory guidance to law enforcement.”
Even state courts within the 1st Circuit have come to contrary conclusions. The Massachusetts Supreme Judicial Court held last year that a limited search by police of a cellphone’s contents incident to arrest did not violate the Fourth Amendment. Meanwhile, Rhode Island is appealing a ruling last year from a Superior Court judge that the police’s warrantless search of cellphone text messages at the time of arrest was unconstitutional.
The 4th, 5th and 7th Circuits and state courts in Minnesota, Ohio and elsewhere have also weighed in, coming to differing conclusions and making it more likely that the Supreme Court will decide to step in.
A petition for certiorari raising the issue was filed July 30 in the California case of Riley v. California. Petitions from other courts, including the 1st Circuit, will likely soon follow.
Tracking location data
Hot on the heels of the search incident to arrest issue is the growing question of whether police need a warrant to obtain historical cellphone location information from service providers — information that can paint a complete picture of an individual’s movements over a period of time.
Most recently, the 5th Circuit ruled in In re Application of the U.S. for Historical Cell Site Data that a warrant was not required for the government to obtain such data. That July 30 ruling upheld the constitutionality of the commonly-used practice of obtaining data with a court order under the Stored Communications Act, which imposes a lower standard than necessary for a probable cause warrant and does not require that the cellphone subscriber be notified.
The ruling conflicts with a decision from the 3rd Circuit, and the issue is pending before other courts.
While law enforcement officials argue that the acquisition of such information is crucial for solving crimes relating to everything from gang activity to drug smuggling, civil liberties groups say that relaxing the probable cause standard poses a risk to the privacy rights of the 85 percent of Americans who carry cellphones.
“We are talking about getting a complete record of every place you’ve been, whether it’s the doctor’s office, or an AA meeting, or a night at a lover’s house,” said Nate Wessler, staff attorney with the ACLU’s Speech, Privacy, and Technology Project in New York and lead author of an amicus brief filed on behalf of the ACLU of Maryland, the National Association of Criminal Defense Lawyers and other groups in the pending 4th Circuit case of U.S. v. Graham. That case is on appeal after a federal district court ruled that the police’s warrantless use of 221 days of cell site location information from the defendants’ phones did not violate the Fourth Amendment because the records “are the ‘business records’ of the cellular providers,” not private data belonging to the defendants.
To support the groups’ argument that such an interpretation is wrong, the brief referenced a graphic showing all of Sprint’s cell sites in the Baltimore area, demonstrating just how much data about cellphone users’ whereabouts the government could access.
Wessler and Welty said the Supreme Court’s Jones decision could signal that the justices are finally willing to decide the difficult issue of the proper expectation of privacy in cellphones and other emerging technologies such as tablet computers.
“The availability and use of these and other new devices will continue to shape the average person’s expectations about the privacy of his or her daily movements,” Justice Samuel A. Alito Jr. wrote in his concurrence in Jones.
Alito’s concurring opinion, paired with that of Justice Sonia Sotomayor, who also addressed the privacy issue, are good indicators that the court is ready to confront the question, Welty said.
But the Jones concurrences don’t dictate what the justices will ultimately decide.
“By no means do I think that Jones tells us how a cellphone tracking case will come out,” Welty said.
Despite the desire by litigants and lower court judges for the Supreme Court to quickly take up this issue, there could be wisdom in waiting, Kerr said.
“The court should delay reaching a decision until the technology has stabilized somewhat,” he said, and compared cellphones to the automobile. While cars experienced rapid technological developments after they were first invented, those advancements gradually slowed and today cars are technologically very similar to those produced decades ago.
But despite this, the justices could still decide to take the big privacy issues head on.
“They could say, ‘Let’s not focus on how the technology works, and instead think about what kind of world we want to live in, and whether we want this kind of information to be private,’” Kerr said.
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