New York Times

Supreme Court Taking Up Police Searches of Data Troves Known as Cellphones

By ADAM LIPTAK APRIL 27, 2014

WASHINGTON — In a major test of how to interpret the Fourth Amendment in
the digital age, the Supreme Court on Tuesday will consider two cases about
whether the police need warrants to search the cellphones of the people they arrest.

“The implications of these cases are huge,” said Orin S. Kerr, a law professor
at George Washington University, noting that about 12 million people are
arrested every year, often for minor offenses, and that about 90 percent of
Americans have cellphones.

The justices will have to decide how to apply an 18th-century phrase — the
Fourth Amendment’s prohibition of “unreasonable searches and seizures” — to
devices that can contain 100 times more information than is in the Library of
Congress’s 72,000-page collection of James Madison’s papers.

The courts have long allowed warrantless searches in connection with
arrests, saying they are justified by the need to protect police officers and to
prevent the destruction of evidence. The Justice Department, in its Supreme
Court briefs, said the old rule should apply to the new devices.

Others say there must be a different standard because of the sheer amount
of data on and available through cellphones. In February, for instance, the Texas
Court of Criminal Appeals suppressed evidence found on the phone of a high
school student who was arrested on charges of causing a disturbance on a school
bus. “Searching a person’s cellphone,” the court said, “is like searching his home
desk, computer, bank vault and medicine cabinet all at once.”

The justices are not always savvy about technology. At last week’s argument
over whether an Internet streaming service is lawful, Justice Antonin Scalia
seemed to think HBO is a broadcast rather than a cable channel.

But the justices can be sensitive to the implications of new technology for
privacy rights, especially their own. Things did not go well for the Justice
Department after one of its lawyers said at a 2011 argument that the F.B.I. was
free to place GPS devices on the justices’ cars. The government lost the case,
against a drug dealer it had tracked for a month, by a 9-to-0 vote.

Similarly, in 2001, the court limited the use of thermal-imaging devices to
peer into homes. Justice Scalia, writing for the majority, said, “It would be
foolish to contend that the degree of privacy secured to citizens by the Fourth
Amendment has been entirely unaffected by the advance of technology.”

The problem in the thermal-imaging case, he wrote, was that the devices
could detect not only heat lamps used to grow marijuana but also “at what hour
each night the lady of the house takes her daily sauna and bath.”
Searches of phones may give rise to a similar protective reaction. “It’s a
technology that all the justices will understand,” Professor Kerr said. “They all
have cellphones.”

But they may not know how much information such phones can contain,
including call records, messages, Internet browsing records, calendars, books,
diaries, photographs and videos, to say nothing of applications that connect to
financial, medical and travel records.

Adam M. Gershowitz, a professor at William & Mary Law School, noted that
his iPhone tracked and stored his movements. “I just looked,” he said, “and my
phone shows that I arrived at work yesterday at 8:56 a.m.” It also showed where
and when he had lunch.

The first case to be argued Tuesday, Riley v. California, No. 13-132, arose
from the arrest of David L. Riley, who was pulled over in 2009 in San Diego for
having an expired registration. The police found loaded guns in his car and, on
inspecting Mr. Riley’s smartphone, entries they associated with a street gang.

A more comprehensive search of the phone led to information that linked
Mr. Riley to a shooting. He was later convicted of attempted murder and
sentenced to 15 years to life in prison. A California appeals court said neither
search had required a warrant.

In its Supreme Court brief, California said information on phones “is not
different in kind from wallets, address books, personal papers and other items
that have long been subject to examination.”

Another case on Tuesday, United States v. Wurie, No. 13-212, involved a
search of the call log of the flip phone of Brima Wurie, who was arrested in 2007
in Boston and charged with gun and drug crimes. The federal appeals court in
Boston last year threw out the evidence found on Mr. Wurie’s phone.

“Today, many Americans store their most personal ‘papers’ and ‘effects’ in
electronic format on a cellphone, carried on the person,” Judge Norman H. Stahl
wrote for a divided three-judge panel of the court, quoting the words of the
Fourth Amendment.

News organizations, including The New York Times, filed a brief supporting
Mr. Riley and Mr. Wurie in which they argued that cellphone searches can
compromise news gathering.

Other briefs in the two cases focused to an unusual degree on the practical
questions of whether phone searches must be conducted immediately or can
await a warrant.

Officials in California told the justices that searches are required because
cellphones can be used to set off bombs. Mr. Riley’s lawyers responded that “this
scarcely resonates as an everyday concern.”

The state’s brief added that immediate searches are needed because data on
cellphones can be erased by a remote signal, perhaps by criminal confederates. A
supporting brief from several law enforcement groups described an application
“that would wipe a phone’s memory based on when the phone is carried into
certain locations — such as a police station.”

Mr. Riley’s lawyers responded that all the police need to do is put the seized
phones in airplane mode while they seek a warrant. If that is not enough, they
say, the police can use so-called Faraday bags, which block remote signals and
are sold for as little as $6, or wrap the seized phones in a few pennies’ worth of
aluminum foil.

The parties disputed whether such methods are completely effective. Even if
they are, Solicitor General Donald B. Verrilli Jr. told the justices, a Faraday bag
works only until it is opened to inspect the phone, at which point the phone again
becomes vulnerable to remote wiping.

“That means,” Mr. Verrilli wrote, “that local police departments will need
not only cheap Faraday bags but also Faraday rooms or other specialized
equipment.”

Professor Gershowitz, who has written several law review articles on
cellphone searches and who filed a brief supporting Mr. Riley and Mr. Wurie,
said a simpler solution would be to use a Faraday bag with a clear window. One
such bag sells for $95.

In general, he said, the fear of remote wiping is easily addressed, adding
that his latest article may provoke an experiment at the Supreme Court.
“I’m hoping,” he said, “that a law clerk is sitting in a back room wrapping a
phone in aluminum foil.”

A version of this article appears in print on April 28, 2014, on page A12 of the New York edition with the
headline: Supreme Court Taking Up Police Searches of Data Troves Known as Cellphones.