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Martha Buyer
Martha Buyer is an attorney whose practice is limited to the practice of telecommunications law. In this capacity, she has...
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Martha Buyer | June 27, 2014 |

 
   

The Supreme Court Rules on Mobile Devices, and Privacy Wins

The Supreme Court Rules on Mobile Devices, and Privacy Wins Further, the decision may reflect the first time that the Supreme Court Justices have referred, in a remarkably knowledgeable way, to cloud computing.

Further, the decision may reflect the first time that the Supreme Court Justices have referred, in a remarkably knowledgeable way, to cloud computing.

In a rare unanimous decision this week, the U.S. Supreme Court held that "the police generally may not, without a warrant, search digital information on a cell phone seized from an individual who has been arrested." The key phrase in this initial sentence from the legal opinion is "without a warrant." That is, in most cases, cell phones and other wireless devices may be searched for content from an arrested individual only once a warrant has been properly obtained.

The opinion reflects a real understanding of the omnipresence of wireless devices as well as the volume of personal information that is often stored on each one. As The New York Times noted, since the average age of Supreme Court justices is 68, and given that they often admit to technological limitations, this decision suggests not only that the justices own such devices, but that they use and understand the vast amount of personal information that is accessible on them. Further, the decision may reflect the first time that the Supreme Court Justices have referred, in a remarkably knowledgeable way, to cloud computing.

The decision, which actually includes two cases (Riley v. California and United States v. Wurie) makes it clear that the Fourth Amendment (illegal search and seizure) applies to mobile phones. In the Riley case, police seized Mr. Riley's phone after his arrest and accessed data containing gang-related information. Based on video and photo information found on the phone, the police subsequently charged Riley with a gang-related shooting that had occurred weeks earlier. Riley was convicted, despite Riley's attempt to suppress the evidence that he claimed came from an illegal search.

In the Wurie case, the defendant was arrested after police watched his participation in an alleged drug sale. Following his arrest, Mr. Wurie was at the police station when his phone repeatedly rang. The name of the calling party that flashed repeatedly was "my house." The police accessed the phone's log and used the information to secure a search warrant to search Mr. Wurie's apartment where they found drugs, ammunition and cash. Like Mr. Riley, Mr. Wurie had unsuccessfully attempted to suppress this evidence at trial, and like Mr. Riley, he was convicted. Both defendants appealed, and the cases were argued before the Supreme Court in April.

Writing for the court, Chief Justice Roberts made reference to, "modern cellphones, which are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy."

As has been well-publicized, the decision is not about mobile device searches, but about warrantless searches of arrested individuals. Until this point, three cases that have provided guidance as precedents include Chimel v. California, United States v. Robinson, and Arizona v. Gant. Under Chimel, the court determined that a search conducted in connection with an arrest must be limited to "the area within the arrestee's immediate control, where it is justified by the interests of officer safety and in preventing evidence destruction."

The two elements of Chimel, officer safety and evidence destruction, were deemed irrelevant by the Court based on the facts in both of this week's cases. Does possession of a mobile phone pose a threat to officer safety? This is highly unlikely. The Court clearly pointed out that "Digital data stored on a cell phone cannot itself be used as a weapon to harm an arresting officer or to effectuate the arrestee's escape. Officers may examine the phone's physical aspects to ensure that it will not be used as a weapon, but the data on the phone can endanger no one."

As to the second issue of evidence destruction, according to the decision, there is little confirmation that evidence destruction, in the form of remote wiping or other content "adjustment" has been a prevalent problem. Like the threat to officer safety, the likelihood of evidence destruction was not deemed to outweigh privacy concerns.

Additional factors were considered by the Justices when weighing public safety concerns against those of privacy rights. Particularly with respect to privacy, in fact, much of the information accessible from a mobile device may not be resident on the device itself, but rather stored remotely. Such a search would clearly fall well beyond the "area within the arrestee's immediate control." Thus the cloud reference.

One final and essential point: The Court's holding does not immunize mobile devices from searches. However, with well-defined exceptions for "exigent circumstances," when law enforcement personnel have a critical and time-sensitive need for such a warrantless search, the decision still clearly and unequivocally requires that proper warrants be in place before such searches are conducted.





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