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Privacy in the Tech Age
SCOTUS: 4th Amendment Applies to 21st Century

Fourth Amendment protections against unreasonable search and seizure apply to your cellphone and its contents, the Supreme Court ruled today. The unanimous ruling, Riley v. California, held that police need a warrant before searching the contents of a cellphone taken from an arrested person. Writing for the court, Chief Justice Roberts noted that cellphones “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,” and marked out a firm position on privacy in the 21st century:

Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans “the privacies of life.” … The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought. Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple— get a warrant.

The Court also made observations that would seem to have a broader bearing on digital privacy:

“The Term “cell phone” is itself misleading shorthand; many of these devices are in fact minicomputers that also happen to have the capacity to be used as a telephone. They could just as easily be called cameras, video players, rolodexes, calendars, tape records, libraries, diaries, albums, televisions, maps, or newspapers.”

Police had been relying on a doctrine, “search incident to arrest,” that allows cops to make sure the person they’re arresting isn’t carrying anything dangerous or incriminating. In Riley, a man originally pulled over for a traffic violation was then charged with and convicted of attempted murder, based on information found after authorities broke into his phone. The Court didn’t buy it, saying that searching the contents of a cellphone is not the same as searching a pocket for a knife.

Counterintuitively, the decision may have some positive effect regarding national security. As the United States faces down worse terrorists than seemingly ever before, securing good intelligence is vital. As in all wars, such efforts must be adapted to the circumstances of the day. This means the NSA, CIA, and the DIA need to be paying attention to our enemies’ cellphones and computers.

But if Americans are going to agree to this vital proposition, they need assurances that their local police department will not treat routine scenarios the same way the NSA would target an ISIS leader. Otherwise, a backlash like that sparked by Edward Snowden’s revelations might grow to the point of upending truly vital intelligence techniques, applied by the proper authorities to actual terrorists (and subject to the review of the appropriate if not always public courts).

The Supreme Court recognized the distinction between crises and daily life by ruling that police could search a cellphone in ticking-time-bomb or child-abduction circumstances. Overall, the ruling looks like a common sense step in the right direction toward a protection of privacy in the digital age. If it also ends up helping the national security apparatus to do its job with greater confidence from the public, so much the better.

The Supreme Court has taken a lot of flack recently because of what it sees as its defense of the First Amendment (on campaign finance issues) and the Second (on the right to bear arms). Now it is standing up for the Fourth Amendment; let’s hope the public approves. It isn’t easy to interpret these fundamental rights in the light of ever-changing circumstances, but we are glad to see that the Court is committed to trying.

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  • Jacksonian_Libertarian

    So the 4th Amendment counts but the 9th and 10th are meaningless?

    • Andrew Allison

      The problem with the Ninth Amendment is that the additional rights protected are undefined. The Fourth amendment protects against the sort of overreach ruled upon here. What we sorely need, pace today’s post regarding the latest example of SWAT team overreach, are some Bill of Rights rulings on unwarranted force.
      The Tenth Amendment is not relevant to the case at hand, but State’s rights have clearly been trampled upon by all three branches of the Federal government in any number of other instances, and it’s high time we reversed this. The States should be much more aggressive in defending their rights by challenging legislation and regulations which violate them, and perhaps challenging the acceptance of cases by the Supremes. Similarly, the Supremes should pay careful attention to the Tenth Amendment before accepting cases, let alone rendering judgement.

  • ShadrachSmith

    This is a good use of the exclusionary rule. People’s papers and effects are now kept on citizen’s cell phones, and SCOTUS requires a warrant for searching that. Thank you Justice Thomas, I trace all the opinions confirming the clear meaning of the constitution’s limits on government power to Thomas’ influence. Well done.

    • FriendlyGoat

      I think that, since this was unanimous at SCOTUS and we’re on a women’s forum, I’ll confine my thanks to Sonia Sotomayor, Ruth Bader Ginsberg and Elena Kagan. Why not? We can be quite assured, after all, that they will not be voting alongside Clarence Thomas unless he happens to trip over his briefcase and accidentally fall on the side of sense.

  • FriendlyGoat

    This decision is good but it does not, as implied in the last paragraph, excuse this Court for the errors of Citizens United and the disregard of the militia purpose in the Second Amendment in a gun case. These cases aren’t all somehow similar just because they involve interpretations of the “Amendments”.

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