The Supreme Court on Wednesday unanimously ruled that police officers need to obtain warrants before searching through the cellphones of people they arrest, a potentially far-reaching decision that comes at a moment when courts across the United States are considering how to adapt laws on privacy to an age where staggering amounts of personal information reside on ever-growing numbers of electronic devices.
The Supreme Court's ruling pertains to criminal law and doesn't affect the laws governing warrantless surveillance and data collection that have been at the heart of the controversy over intelligence-gathering by the National Security Agency. That may change, however, with the high court recently signaling that it may be prepared to reconsider the rules around that kind of data-gathering as well. More specifically, the court would likely examine whether so-called metadata, such as the phone records that the NSA has been routinely collecting for years, should be afforded greater legal protection against government search and seizure.
In that context, the court's 9-0 ruling on cellphone searches seemed to emphasize its willingness to reset the balance between security and privacy -- and to do so in favor of more privacy. In writing the unanimous opinion, Chief Justice John Roberts said that cellphones typically disclose far more personal information about a suspect than the government would be able to obtain by physically searching his or her 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 closed the opinion with a straightforward admonition to police officers who'd like to snoop the contents of suspects' phones: "Get a warrant."
The case confronting the Supreme Court concerned two cases involving police searches of the cellphones of criminal suspects. In one, police discovered guns in the car of a man they had pulled over for having an expired auto registration and then searched his cellphone, where they found information that tied him to a street gang and a previous shooting. In the second, the judges upheld a lower court ruling tossing out the conviction of Brima Wurie, who had been put on trial after police searched his call logs following a minor traffic stop and used the information to find guns and drugs at his home.
While those searches differ from an intelligence agency obtaining phone records for potential terrorism investigations, legal experts have predicted that the controversy over NSA surveillance -- a set of activities that are largely governed by the Foreign Intelligence Surveillance Act, but that still must comport with the Fourth Amendment's prohibitions on unreasonable search and seizure -- is bound to end up before the justices.
And one justice, Sonia Sotomayor, has already indicated that it may be time to rethink an earlier ruling that held that phone metadata, including the numbers a person dials and how long he speaks on the phone, aren't protected by the Fourth Amendment and can be obtained without a warrant. That metadata, just like information on a person's cellphone, can reveal intimate details about his personal relationships, his habits, and potentially his movements.
In the digital age, "people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks," Sotomayor wrote in 2012 while signing on to a ruling requiring law enforcement agencies to obtain a warrant before placing a GPS tracker on a suspect's car. The question of metadata wasn't before the court, but the balance between privacy and security was.
"I, for one, doubt that people would accept without complaint the warrantless disclosure to the government of a list of every Web site they had visited in the last week, or month, or year," Sotomayor wrote. "But whatever the societal expectations, they can attain constitutionally protected status only if our Fourth Amendment jurisprudence ceases to treat secrecy as a prerequisite for privacy."
Many experts quickly greeted the Court's ruling in the cellphone search case as a victory for privacy rights in the digital age. Orin Kerr, a law professor at the George Washington University, called the ruling "a big win for digital privacy." Richard Bejtlich, a senior strategist with the cybersecurity firm FireEye, likewise called the ruling a significant victory and said in a tweet that he agreed with the Court's unanimous decision.
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