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Technology and the law are not the best of buddies. While the rate of digital innovationcell-phone-privacy-what-do-apps-know shows no sign of slowing down, judges already struggle to provide appropriate legal solutions armed solely with an antiquated set of rules, some written decades ago. The writers of privacy and copyright laws in particular could never have anticipated the abundance of social media and digital sharing platforms, or indeed how willing people would be to share private information online.

 

An interesting legal problem caught my attention recently. The Supreme Court in April heard arguments on what seemed to be a straightforward question: pursuant to the Fourth Amendment, do police officers need a warrant to search the cellphone of a person they arrest? This question originated from two cases: Riley v. California, 13-132, and U.S. v. Wurie, 13-212.

 

In the first case, prosecutors had used photographs and video found, without a warrant, on Riley’s smartphone as evidence against him in an attempted murder trial. In the second instance, police who arrested Wurie on suspicion of selling crack cocaine checked the call history on his phone then used that information to determine where he lived. When they subsequently searched Wurie’s home (having now secured a warrant) they found crack cocaine, marijuana, a gun and ammunition.

 

Let’s take a couple of steps back and look at the legal framework here.

 

For an arrest to be valid, the police need to demonstrate probable cause of criminal activity. If the police want to seize evidence or search for evidence during that arrest, they will need one of two things: a warrant, or an exclusion to the normal warrant requirements that would void the need for a warrant. Keep in mind that the Fourth Amendment does not cover what a police officer can do; it applies to whether the evidence collected (and subsequent evidence found only because of that initial search or seizure) can be used against the suspect in court.

 

It’s not hard to see why police would want to search someone’s cellphone. As the Justice Department lawyer Michael Dreeben argued, cellphones can be integral to the commission of a crime. An officer may have to act quickly, without sufficient time to get a warrant, to avoid the suspect deleting information or enacting encryption. However, those considerations have to be balanced against an individual’s right to privacy and the relevance of that phone to the suspected crime.

 

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There is already an exception to warrant requirement in the case of “evanescent” evidence, i.e. evidence that is likely to disappear in the time taken to get a warrant. This usually applies to delicate substances such as DNA, although it has previously covered e-mails or other electronic files that can be deleted almost instantly.

 

However, in the case of cellphones, this exception would have to be based on the premise that the suspect is capable of deleting the applicable data (both in terms of access to the data and the ability to permanently delete it), and therefore the police need to act urgently to retrieve it. This exception does not seem to apply to the call history in the Wurie case, as the phone company would have its own records. However, it may be relevant to Riley’s situation, depending on the facts.

 

If the justices are to consider even a partial exception for cellphones, there are many factors they have to consider that are relevant to how we use our phones and the technology now at our disposal. Here are a few of the trickiest scenarios that may well spark cases of their own in the future:

 

  • Passwords: With devices that are password or fingerprint protected, if the officer asks for your password, would your 5th amendment right against self-incrimination protect you if you refuse to hand over that information?
  • Notifications & Alerts: Even searches where the police do have warrants have to show “peculiarity”, i.e. they must specify the place to be searched, and the items to be seized. Warrants do not give officers free reign to search whatever they like.  If there was no basis to search your entire phone, but an incriminating text pops up or your banking app sends a notification that a recent suspicious deposit has been processed, is this covered by the “plain view” exception to warrantless searches where evidence in plain sight is fair game?
  • Potential Evidence Tampering: A smartphone is often just another way to access various accounts and profiles. Twitter, Instagram and Facebook can be accessed from any computer or tablet, plus many programs have cloud functionality and auto-sync capabilities. How are the police going to prove that evidence has been preserved beyond a reasonable doubt when so many elements can be manipulated by anyone with the password?
  • Maps: There was a unanimous Supreme Court decision in 2012 that police could not fit GPS trackers to a car without a warrant. Does that have any impact on whether a police officer can look back at mapping apps to see where you’ve been?
  • Snapchat:  Is a screenshot of a temporary message by a police officer a “seizure” of evidence under the Fourth Amendment?
  • Games & Quiz Apps: My own personal favorite: could a defense of legal insanity be undermined with evidence that the suspect attained Level 50 “Mastermind” in the QuizApp General Knowledge category shortly before the alleged crime?

 

So which way will the Supreme Court decide? With the recent uproar over NSA privacy intrusion, this is definitely a sensitive issue with the public right now. Many will argue that the current warrant exceptions provide sufficient flexibility for the police in true emergency situations, and that broader powers are not necessary. However, even without overarching partisan politics at play here and the numerous technological considerations for the justices to wrap their heads around, this decision may not be as straightforward as we might think.

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Verdicts in these cases are expected by late June.

Check out these articles from US News and The Guardian for more details on these cases.

 

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