Justices search for compromise on cellphone privacy

WASHINGTON (USA TODAY) -- Supreme Court justices searched for a middle ground Tuesday on the issue of cellphone privacy without preventing police from investigating crimes.

In two cases involving police searches of cellphones and smartphones during arrests, a majority of justices acknowledged that the vast amount of sensitive data on mobile phones raises new privacy concerns.

But they also seemed determined to preserve the ability of police to conduct reasonable searches during arrests, as they have been able to do for decades.

"We're living in a new world," said Justice Anthony Kennedy, a potential swing vote on the issue. "Someone arrested for a minor crime has their whole existence preserved on this device."

"People carry their entire lives on cellphones," Justice Elena Kagan said. "That will only grow every single year as young people take over the world."

Because of that, said Justice Stephen Breyer, another likely swing vote, warrants should be sought when possible because "you want that third, dispassionate mind" of a magistrate judge involved.

But Chief Justice John Roberts and several of his conservative colleagues said the volume and sensitivity of information on a smartphone should not benefit the criminal at the expense of police, who by law can search an arrested person and whatever is within his reach to seek weapons and preserve evidence.

"Our rule has been if you carry it on your person, you ought to know that it's subject to seizure and examination," Justice Antonin Scalia said.

The justices' recent decisions, as well as the arguments presented by both sides, appear to point toward a compromise.

In just the past two years, the court has ruled that police can swab a suspect's cheek for DNA to put into an unsolved crimes database, as well as conduct strip searches of prisoners without reasonable suspicion. But it also has said police need a warrant to attach a GPS device to a suspect's car, to obtain blood from a drunk driver who refuses a breathalyzer test, and to bring a drug-sniffing dog up to the door of a suspect's house.

The cellphone cases may be just a precursor to more expansive and potentially explosive high court inquiries. Among them: an examination of the National Security Agency's phone and computer surveillance methods, on which two federal district courts already have diverged.

The two cellphone cases involve different crimes, different responses and different lower court rulings. What joins them is one salient fact: Police searched cellphones without first obtaining warrants.

A California court upheld David Riley's conviction on gang-related weapons offenses that police uncovered after stopping his car for expired tags, finding guns under the hood and then discovering incriminating photos and video on his smartphone.

In Massachusetts, a federal appeals court threw out Brima Wurie's conviction after a more limited search of his old-fashioned flip phone following a street arrest led police to find a cache of drugs and weapons at his home.

Because the California search was extensive and the Massachusetts search more limited and based on incoming calls, both cases could be ripe for reversal. But with appeals courts divided on the issue of cellphone searches, the justices are being asked to devise bright-line rules for police to follow.

That's particularly true because technology is advancing, creating new Fourth Amendment puzzles for police to solve.

"Smartphones do present difficult problems," Justice Samuel Alito said. "The technology changes a lot of things."

And the justices are going their best to keep up, from all appearances Tuesday. During two hours of oral arguments, they tossed around terms such as Facebook, Twitter, and "airplane mode" and referred several times to "apps."

That led Roberts to wonder what a search warrant should and should not include -- to which Jeffrey Fisher, the lawyer for Riley, responded that it might need to be decided on an "app-by-app basis."

When the discussion turned to password locks and other ways of making cellphones inaccessible, Breyer quipped that he doesn't know what type of phone he has "because I can never get into it."

Nine in 10 adults in the U.S. own cellphones, more than half of them smartphones. Eight in 10 use those phones to send text messages; more than half send or receive e-mail, download applications, or access the Internet.

The least capable Apple iPhone 5 can store 800 million words of text, enough to line a football field with books or fill 16 flatbed trucks with paper. It can hold 8,000 photographs, 260,000 phone messages, or hundreds of home videos.

Combine that data with the estimated 12.2 million arrests made nationwide in 2012 — not including citations for traffic violations — and you have a potential perfect storm of cellphone searches.

Much of the debate Tuesday focused on the differences between digital data and physical objects that the Supreme Court has ruled can be subject to searches without warrants. Government lawyers said digital data is easier to destroy, making it even more important that police be able to search it immediately.

"it's an arms race between the forensic capabilities of law enforcement labs and the abilities of cell phone manufacturers and criminals to devise technologies that will thwart them," Deputy Solicitor General Michael Dreeben said.

But lawyers for the defendants said because so much confidential data is on smartphones, the privacy standard should be higher.

Otherwise, Fisher said, "I think you will fundamentally have changed the nature of privacy that Americans fought for at the founding of the republic and that we've enjoyed ever since."


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