Kevin Schofield's writings, observations, and other pointless distractions
Today the Supreme Court heard oral arguments on two cases related to searching cell phones: Riley vs. California and United States vs. Wurie. The issue in both is the same: if the police arrest you, do they have the right to search your cell phone’s contents?
Today there is no dispute that the police may search your wallet and your pockets upon your arrest, without a warrant. On the other hand, they cannot search your house without a warrant, except in very specific circumstances usually involving a belief that there is a crime happening at that very moment within it.
Cell phones are somewhere in the middle: you carry them on your person, but today they contain a wealth of personal information: emails, texts, medical records, financial records, photographs, documents, etc. Those are things that would normally require a warrant for the police to acquire. In the words of Justice Anthony Kennedy today, “we are living in a new world” where past distinctions imposed on us by the physical world often don’t apply.
From this account of the oral arguments today, the justices were in broad agreement that they disliked both extremes: always allowing police to search a cell phone, and never allowing it. And they didn’t seem to have much luck finding a reasonable middle ground either, such as limiting the search to things relevant to the crime the owner is being accused of, or scaling up the kind of searching allowed based upon the severity of the crime.
The good news here is that the Supreme Court, which is generally naive about technology-related issues, seems to have a clue about the implications here: Kennedy even observed (correctly) that today people have their “whole life” on their phone.
I think it’s difficult to predict how they will rule. Don’t expect a quick turnaround, though — they’ve got a lot of work to do on this case.