recommended reading

The Supreme Court Is About to Decide the Future of Cell-Phone Privacy

Marcio Jose Sanchez/AP

Do police have the right to hunt through your iPhone's treasure trove of text messages, photos, and call history during an arrest?

The Supreme Court will attempt to answer that question Tuesday as it hears two related cases that consider the privacy protections of personal data in cell phones.

At issue in both cases is whether—and to what extent—law-enforcement officials have the right to warrantlessly search phones during or shortly after an arrest. Potentially far-reaching decisions are expected in June.

State prosecutors and the Justice Department say police need to be able to search cell phones and, by extension, other personal electronic devices to obtain necessary evidence and catch bad guys. But privacy advocates contend that the vast amount of data that phones can now hold constitute an X-ray window into a person's private life. They warn that earlier rulings granting search authority to police never intended for so much sensitive information to be subject to a warrantless search.

"Allowing police officers to search a person's cell phone without a warrant following an arrest would be a substantial infringement on privacy, is unnecessary, and unreasonable under the Fourth Amendment," the Electronic Privacy Information Center wrote in a friend-of-the-court brief. "There is no need to allow warrantless searches when currently available techniques allow law enforcement to secure the cell-phone data pending a judicial determination of probable cause."

The Fourth Amendment protects Americans from unreasonable searches, a principle that often also extends to items considered personal property. But decades-old court rulings have granted police the narrow authority to search a suspect and the area within his reach "from incident to arrest."

That standard, however, was made long before cell phones existed and was largely intended to prevent a suspect from destroying evidence or grabbing a nearby weapon. But the near-ubiquity of cell phones—and the growing amount of personal information that can be stored on them—has now prompted consideration by the Supreme Court.

In Riley v. California, the Court will weigh whether state police erred in 2009 when searching a San Diego man's smartphone twice—once at the scene of the arrest and again at the police precinct—before obtaining a warrant. A compromising photo discovered on the phone showed the man posing with a gang member and a car suspected in a drive-by shooting. The photo was later used in court as evidence in a trial that resulted in a 15-year prison sentence.

California claims that authorities acted properly and that previous court decisions have consistently upheld the right to search personal items a suspect is carrying at the time of arrest.

"California recognizes the remarkable advances that have been, and continue to be, made in communications, storage, and networking technology," the state's brief reads. "The facts of this case, however, provide no basis for departure from long-standing Fourth Amendment standards."

The second case before the Court, U.S. v. Wurie, concerns a 2007 arrest of an alleged drug dealer in Boston who, upon arrest, had his flip phone seized and his call history promptly searched by authorities. The search of call logs led police to a residence—listed in the phone as "my house," though different than the address the suspect provided—where they found (this time, with a warrant in hand) firearms and crack cocaine.

The Justice Department, in its Wurie brief, opened the door to a nuanced ruling that wouldn't be an all-or-nothing proposition. But it suggested that cell phones must be included in any formula.

"Even if it were appropriate to create item-by-item exceptions to officers' authority to search an arrestee, no sound justification exists to exclude cell phones from the general rule," Solicitor General Donald Verrilli will argue Tuesday. "In today's world, cell phones are particularly likely to contain evidence of unlawful activity and to help law-enforcement officers identify suspects they have apprehended."

Exactly how the Court could narrowly tailor its decision is unclear, although the fact that one case deals with an antiquated flip phone and the other with a smartphone could offer some guidance. But it also underscores how the technological capabilities of phones evolve rapidly and therefore prove difficult to develop concrete standards.

Tuesday's cases have drawn wide interest for the potentially far-reaching ramifications the Court's opinions could have on every American's rights to digital privacy. Fourteen news organizations filed a brief arguing that phone privacy is crucial to a free press and must be protected. On Monday, one of them, The New York Times,strongly urged the Supreme Court to not upend long-standing Fourth Amendment principles to accommodate the challenges that law enforcement claims phones present.

"Mobile phones aren't weapons and pose no physical threat, and any evidence on the phone can be preserved by using special devices to prevent remote deletion of the data," the paper's editorial board wrote Monday. "Permitting police officers to search a mobile phone, or any digital storage device, essentially gives them access to someone's entire life; allowing them to do so without a warrant renders the Fourth Amendment's guarantee against unreasonable searches and seizures meaningless."

Washington has been gripped in a rolling debate over how much of Americans' personal digital communications should be off-limits to government since former contractor Edward Snowden leaked details about the National Security Agency's bulk collection of phone metadata last June.

While the issues before the Court have nothing to do with NSA surveillance, civil-liberties and privacy advocates see the cases as yet another battlefront in an ongoing war over how much data authorities and corporations should be allowed to gather, store, and analyze. The Court's rulings could portend how it leans in any number of future cases dealing with digital privacy.

Threatwatch Alert

Thousands of cyber attacks occur each day

See the latest threats


Close [ x ] More from Nextgov

Thank you for subscribing to newsletters from
We think these reports might interest you:

  • It’s Time for the Federal Government to Embrace Wireless and Mobility

    The United States has turned a corner on the adoption of mobile phones, tablets and other smart devices, outpacing traditional desktop and laptop sales by a wide margin. This issue brief discusses the state of wireless and mobility in federal government and outlines why now is the time to embrace these technologies in government.

  • Featured Content from RSA Conference: Dissed by NIST

    Learn more about the latest draft of the U.S. National Institute of Standards and Technology guidance document on authentication and lifecycle management.

  • A New Security Architecture for Federal Networks

    Federal government networks are under constant attack, and the number of those attacks is increasing. This issue brief discusses today's threats and a new model for the future.

  • Going Agile:Revolutionizing Federal Digital Services Delivery

    Here’s one indication that times have changed: Harriet Tubman is going to be the next face of the twenty dollar bill. Another sign of change? The way in which the federal government arrived at that decision.

  • Software-Defined Networking

    So many demands are being placed on federal information technology networks, which must handle vast amounts of data, accommodate voice and video, and cope with a multitude of highly connected devices while keeping government information secure from cyber threats. This issue brief discusses the state of SDN in the federal government and the path forward.

  • The New IP: Moving Government Agencies Toward the Network of The Future

    Federal IT managers are looking to modernize legacy network infrastructures that are taxed by growing demands from mobile devices, video, vast amounts of data, and more. This issue brief discusses the federal government network landscape, as well as market, financial force drivers for network modernization.


When you download a report, your information may be shared with the underwriters of that document.