As Angela Merkel knows, United States authorities have a tricky relationship with phone privacy. After revelations of ongoing tapping of the Chancellor’s mobile phone, President Obama assured Merkel that her phone is no longer monitored by U.S. intelligence (whether this is the case with other world leaders is another matter). And though outrage over the Snowden leaks has cooled, the matter of oversight of the National Security Agency’s surveillance program will continue to be a point of contention for Congress and the public in the near future. With this chaos in mind, it is a welcome announcement that the Supreme Court will clarify, to a degree, Americans’ privacy rights with respect to mobile phones in the coming year. In January, the Supreme Court announced that it will rule on a pair of cases regarding police authority to search the contents of cell phones obtained without warrants. A state and a federal level case, Riley v. California and United States v. Wurie both address whether Americans’ Fourth Amendment rights extend to their cell phones. Similar cases have been heard in state courts across the country. At the moment, whether or not the police can scroll through your emails, bank account or pictures of your cat depends on what state you’re in.
The principle question of Riley and Wurie is whether citizens’ Fourth Amendment right “to be secure in their persons, houses, papers, and effects” and protection against “unreasonable searches and seizures” extends to the phones they carry in their back pockets. In Riley v. California, David Leon Riley was arrested after being stopped for driving with expired license plates. The police seized his phone and upon examination, found a trail of evidence that led to his conviction for a 2009 shooting. Riley’s smartphone contained calls that were later traced by police and indicated that Riley was a participant in the shooting. They also discovered a photo of Riley at the scene of the shooting and videos of boxing matches in which Riley shouts gang related comments. The photo and videos found on Riley’s phone were used as evidence in the case that led to his conviction on counts of attempted murder, shooting at an occupied vehicle, and assault with a semi-automatic weapon. In United States v. Wurie, a Boston man was arrested for a suspected drug sale. Two phones were found on the man and the calls traced on the phones were used to convict Wurie for possession and distribution. Unlike Riley v. California, the cell phone examined in the Wurie case was not a smart phone, but still provided the police with incriminating evidence that was collected without a warrant.
States and the courts are scattered on the issue. A handful of states – Rhode Island included – have set precedents that warrants are required by police to search cell phones. But even more states – grouped predominantly in the South – have established the reverse. Surprisingly, California landed with the likes of Texas, Georgia, and South Carolina after its governor vetoed a law protecting phones from warrantless searches in 2011. Last month, an Indiana bill passed the Indiana House of Representatives that would require a warrant for phones; it has yet to win approval in the Indiana Senate. Though Indiana and California have legislated on the issue, the bulk of battles over the ever-increasing exposure caused by technology are being fought in the courts. States have established independent precedents to govern police activity within their borders, and cases at the federal level are woefully conflicted. After hearing Wurie, the federal appeals court of Boston barred all warrantless phone searches except for in emergency situations. The opposite was established by Judge Richard Posner of the seventh circuit court of appeals: “So opening the diary found on the suspect whom the police have arrested, to verify his name and address and discover whether the diary contains information relevant to the crime for which he has been arrested, clearly is permissible; and what happened in this case was similar but even less intrusive, since a cell phone’s phone number can be found without searching the phone’s contents, unless the phone is password-protected – and on some cell phones even if it is.” In the case, Posner addressed whether the police violated an Indiana man’s rights after accessing numbers on his phones, seized after arresting the man at a methamphetamine bust. The police used data obtained, without warrants, to file subpoenas on the various numbers’ carriers.
That the police only examined telephone numbers found on the man’s phones is relevant to Posner’s ruling: Posner qualified his judgment by indicating that the extent to which data is collected from a mobile phone is an issue. He cited a smartphone application, iCam, that allows users access to surveillance systems of their homes. Posner admitted citizens are protected from police examination of such invasive content without a warrant.
Posner’s ruling demonstrates the difficulty in establishing privacy rights in a time when personal information is more easily accessible than ever before. Smartphones are essentially personal computers; they can contain just as much intimate information as a desktop can. Under past circumstances, individuals could reasonably expect personal correspondence, photos, videos, bank accounts and purchasing histories to be secure from police seizure. Such content would be remotely located in a citizen’s home and would generally require a warrant to be seized (though this protection isn’t iron clad). Modern technology has blurred the lines of whether a phone falls into the category of ‘diary’ and ‘container,’ for which there is a precedent of being fair game for authorities to examine sans warrant, or something more. The Supreme Court will face a tough decision evaluating the precarious circumstance of citizens carrying more comprehensive diaries than the Bill of Rights writers could have imagined, all in their back pockets.