Friday, May 2, 2014

The Cautionary Instruction: U.S. Supreme Court takes on cellphone privacy

Matthew T. Mangino
The Pittsburgh Post-Gazette/Ipso Facto
May 2, 2014
Last fall, the Washington Post reported that U.S. Supreme Court Chief Justice John G. Roberts Jr. told a room full of college students that the biggest constitutional challenge facing the court was "the fundamental principle underlying what constitutional protection is and apply[ing] it to new issues and new technology."
The Supreme Court took on another aspect of that challenge this week, hearing arguments in two cases, Riley v. California, No. 13-132, and United States v. Wurie, No. 13-212.
The Court is considering whether police need a warrant to search the contents of a cellphone seized when making an arrest. Each case deals with similar, but not identical, technologies. The Wurie case is out of Massachusetts and deals with an old-style flip phone, while the Riley case out of California deals with a smartphone.
The Obama administration and the California Attorney General’s Office urged the court to endorse a bright-line rule that would allow police to search the full content of any cellphone, tablet, or laptop computer being carried by anyone arrested by authorities for any reason.
Sixteen states’ attorneys general asked the Supreme Court to equate the privacy of handheld data with that of “information on paper or in other documentary forms.” The National Sheriffs’ Association and related law enforcement agencies argued that warrantless search of cell phones is justified in the face of “time-sensitive accessibility” features like password locks.
Critics say cellphones, particularly smart phones, and other electronic devices increasingly hold or provide access to the most private details of a person’s life -- including personal photos, videos, messages, names of friends and associates, banking and financial information, and medical records, among others.
Justice Antonin Scalia did not seem deeply troubled by the prospect of a cellphone search during an arrest. However, he suggested that it should be limited to evidence of the crime for which the individual was arrested.
Justice Anthony Kennedy brought up a perceived conflict in allowing warrantless cellphone searches in connection with arrests for serious crimes while denying police that right in the case of lesser offenses.
The most vocal defender of smartphone privacy was Justice Elena Kagan, who said she was troubled by the notion that police could confiscate and copy someone’s phone just because he or she was arrested for driving without a seatbelt.
“People carry their lives on cellphones,” she declared.
Scalia seemed to agree. “It seems absurd you should be able to search that person’s iPhone because of an arrest for a minor crime,” he said.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George, P.C. He is the former district attorney of Lawrence County and just completed a six year term on the Pennsylvania Board of Probation and Parole. His weekly column on crime and punishment is syndicated by GateHouse New Service. You can read his musings on the criminal justice system at and follow Matt on Twitter @MatthewTMangino. His new book The Executioner’s Toll, 2010: The Crimes, Arrests, Trials, Appeals, Last Meals, Final Words and Executions of 46 Persons in the United States is now available from McFarland & Company publishers.
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