The U.S. Supreme Court ruled that it is an unconstitutional search and seizure for police officers to search someone's cell phone when arresting them, Volokh Conspiracy's Orin Kerr reports. The court said the searching a cell phone doesn't ensure that officers won't be harmed or that evidence won't be destroyed, which are both reasons that officers are allowed to search arrestees while taking them into custody: "'There are no comparable risks when the search is of digital data. In addition, [United States v.] Robinson regarded any privacy interests retained by an individual after arrest as significantly diminished by the fact of the arrest itself. Cell phones, however, place vast quantities of personal information literally in the hands of individuals. A search of the information on a cell phone bears little resemblance to the type of brief physical search considered in Robinson."
The 11th Circuit ruled yesterday that it's unconstitutional for law enforcement to track cellphones without warrants, the Associated Press reports. The appeals court "determined people have an expectation of privacy in their movements and that the cell tower data was part of that. As such, obtaining the records without a search warrant is a violation of the Fourth Amendment's ban on unreasonable searches and seizures, the judges ruled," according to the AP.
It's the first ruling of the kind in the country.
Sprint, the country's third-largest wireless provider, was the only cellphone company to receive "the secret legal basis of a then-classified program that collected Americans’ phone records by the billions for counterterrorism purposes" because it was the only company to demand access to that legal rationale before the program was revealed last year by Edward Snowden's leaks, the Washington Post reports. After receiving the rationale, Sprint continued to turn over phone call records to the NSA, the Post also reports.
Several U.S. Supreme Court justices appear to be open to putting limits on police officers searching cellphones, Politico reports. Oral argument were heard in two criminal cases today involving warrantless searches of smartphones: "The arguments in both cases centered around whether cellphones and personal technology have created a fundamentally different world for police, and whether that means that warrants should be required for all searches of electronic devices," Politico further reports.
When we get arrested, do police have the right to search phones without a warrant, Reason's Damon Root asks. Do warrantless cell-phone searches constitute unreasonable searches and seizures?
While it is constitutionally permissible for police to search arrestees, their possessions and the immediate vicinity around the arrest site without a warrant, "cell phones contain previously unimaginable amounts of personal information, including not only words and images but also GPS location data. In other words, should getting arrested for a minor offense like jaywalking be sufficient to allow the police virtually unlimited access to your private affairs in search of additional wrongdoing?," Reason also asks.
The two cases the U.S. Supreme Court will hear are Riley v. California and United States v. Wurie.
The Massachusetts Supreme Judicial Court, 5-2, ruled this week that law enforcement may not a track a suspect's movements from cellphone data without getting a warrant, The Wall Street Journal reports. The court held, "'“even though restricted to telephone calls sent and received (answered or unanswered), the tracking of the defendant’s movements in the urban Boston area for two weeks was more than sufficient to intrude upon the defendant’s expectation of privacy,'" WSJ reported from the opinion. The court was applying the state constitution, not the federal constitution.
The U.S. Supreme Court granted certiorari in two cases on whether police making an arrest must get a warrant before searching a suspect's mobile phone, Bloomberg reports. "More than 90 percent of American adults own mobile phones, giving the cases broad practical significance. The outcome also may hint at how the justices would view the National Security Agency’s telephone-data program, an issue likely bound for the high court," Bloomberg further writes.
The Washington Post has another revelation on the basis of leaker Edward Snowden's materials: The National Security Agency is "gathering nearly 5 billion records a day on the whereabouts of cellphones around the world."
The Post further reports: "The NSA’s capabilities to track location are staggering, based on the Snowden documents, and indicate that the agency is able to render most efforts at communications security effectively futile."
Attorney Terrence P. Dwyer writes that there is still a question left open by the U.S. Supreme Court "relating to the extent of government use of GPS technology without a warrant, specifically about requirements when there is no physical trespass upon personal property." He writes that some courts are more protective of cell site locator information while others are not (CSLI "can be sought in one of two ways — either as historical cell site data that seeks past locator information, or as prospective cell site data which seeks real time, present data"). He also writes that it is likely the courts, not legislatures will decide the parameters of our privacy regarding cell phones locational data as there has been very few bills introduced to govern this subject area.