
Supreme court: Warrantless cell phone searches illegal [pdf] - justinph
http://www.supremecourt.gov/opinions/13pdf/13-132_8l9c.pdf
======
acangiano
This passage is just beautiful:

"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,” Boyd, supra, at 630. 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."

~~~
dan_bk
Why would the same not apply to the Internet cables the NSA directly taps all
over the World?

~~~
rayiner
It's generally not useful to quote flowery language like this, because it's
not legally operative. It might justify a particular application of the law,
but it isn't the law. It is what lawyers call "dicta."

NSA wiretaps differ in two key ways:

1) At least in theory, they are intended to capture foreign communications.
People not on U.S. soil who are not U.S. citizens enjoy no protections under
our Constitution.

2) This case is based on interpreting the "search incident to arrest"
exception to the 4th amendment's warrant requirement. The essence of the
exception is that while a warrantless search of someone's person is
potentially the most egregious of fourth amendment violations ("person" being
specifically enumerated in the text of the 4th amendment), it is nonetheless
reasonable in the context of a search incident to arrest,[1] where it might be
necessary in order to secure the arrestee, who might have a gun or throw away
evidence.

An undersea cable is totally different. It is not a search of anybody's
"person" but a search of something containing signals that people are
transmitting out into the world. There are four specific things enumerated in
the 4th amendment: someone's house, person, papers, and effects. It is clear
how searching a phone in someone's pocket is a search both of their person and
their effects. But signals transmitted out into the world does not fit neatly
into any of those four categories. For example if those signals were
transmitted via radio versus fiber optic cable, would it be a "search" to
listen in on them?

Now, the language of the case is relevant in that it suggests the Court may be
open to a more expansive reading of the 4th amendment when it comes to digital
data. There is no way the conservatives on the court would favor
extraterritorial application of the Constitution with regards to undersea
wiretaps, but it could bode well for challenges to domestic surveillance.

[1] Incidentally, as the opinion notes, the touchstone of the 4th amendment is
"reasonableness." This fuzzy word is used explicitly in the Constitution to
allow judges to engage in line drawing and balancing the interests of law
enforcement with privacy rights.

~~~
dan_bk
> But signals transmitted out into the world does not fit neatly into any of
> those four categories.

Therein lies IMO one of the big issues with US justice: the law is interpreted
literally. But the aim of the original law (what it attempted to protect or
achieve, i.e. the citizens' privacy) is not really deemed relevant.

~~~
dragonwriter
> Therein lies IMO one of the big issues with US justice: the law is
> interpreted literally. But the aim of the original law (what it attempted to
> protect or achieve, i.e. the citizens' privacy) is not really deemed
> relevant.

In the US legal system, the intent of the law is considered quite relevant in
the application of the law.

~~~
anigbrowl
By some judges, not by others. If you adhere to a strict textualism of the
sort favored by Justice Scalia, intent is a nice frame for the picture, but
needs to be epressed operationally, eg Justice Scalia has little time for
quotations from the Congressional record about what lawmakers aimed to
achieve, and prefers to focus on the text of the law that was passed rather
than the goal that was intended to be achieved. Likewise, justices have argued
that the best cure for a bad law is zealous enforcement, which will (it is
presumed) lead to its displacement by a better law.

These are not the only views in play in the judiciary, but they are important
ones nonetheless. I recommend a book by Richard Posner called 'How Judges
Think' which offers and accessible and thought-provoking view of the clashes
between different philosophies or jurisprudence.

~~~
andrewla
Scalia's textualism is more nuanced. When we say something like "what the
lawmakers aimed to achieve", there is an implicit assumption that all
lawmakers agreed with the intent of the legislation. But what they vote on is
the text of the legislation, not the intent.

So while there might be a committee of 14 congressmen that intend a law to act
a certain way, there is a larger group that then proceeds to debate and enact
the law, that may not share that intent, but may share the intent as codified
in the law, which may be narrower or broader than the intent of the people who
wrote the legislation itself.

------
rayiner
Wow. It was 9-0 (Alito concurring). It's also not a narrowly-written opinion:

> Even less sophisticated phones like Wurie’s, which have already faded in
> popularity since Wurie was arrested in 2007, have been around for less than
> 15 years. Both phones are based on technology nearly inconceivable just a
> few decades ago, when Chimel and Robinson were decided.

Slip. Op. at 9.

It's not every day that a conservative Chief Justice writes an opinion
predicated on a changing world diminishing the scope of earlier decisions.

~~~
miked
> Alito concurring...That's very interesting language coming from conservative
> Chief Justice Roberts.

Your implication seems to be that conservatives are the ones pushing weak
privacy laws. I'll grant that many conservatives have been weak on privacy
protection, which is one of the reasons that I'm a libertarian. But the
primary parties arguing here for nearly unlimited cell phone search were "The
Obama administration and the state of California, both of which sought to
justify cell phone searches...".

[http://www.washingtontimes.com/news/2014/jun/25/supreme-
cour...](http://www.washingtontimes.com/news/2014/jun/25/supreme-court-bans-
warrantless-cell-phone-searches/#ixzz35fFVR8Ea)

Not to mention that it was Bill Clinton who was behind the appalling push to
expand no-knock raids by police for drug busts.

Even for pot smokers who didn't inhale.

~~~
rayiner
That's not my implication at all. My point is simply that it's rare, for
obvious reasons, for conservatives to invoke changes in the world as
justification for, well anything.

~~~
nathan_long
"Conservative" generally means "skeptical of change". So it depends on how you
look at it. I'd call myself conservative, and I want to conserve my 4th
Amendment rights as I move from carrying papers to carrying digital data.

So you can say "the world has changed and now we have to protect cell phones"
to say it's a progressive position, or "people still carry information and the
government still can't search it without a warrant" to say it's a conservative
one.

~~~
detcader
"Conservative" refers to the vague party/ideology that more smoothly (than
"liberalism", that is) allows for-profit coroprations to co-opt the government
to achieve the regulatory situation for maximal wealth accumulation. It refers
to nothing else. To pretend otherwise is to further facilitate the maximal
wealth accumulation.

~~~
nl
Not only is that unhelpful, it's also untrue. It doesn't capture the goals of
the tea party movement for example.

It's true the outcomes of conservative ideology are often what you say, but
that doesn't make it a goal anymore than the fact that there are welfare
cheats makes cheating on welfare a goal of progressive politics.

~~~
detcader
"It doesn't capture the goals of the tea party movement for example." It
doesn't have to, it just has to "capture" the reason that the movement gained
popularity over any other movement. Theories explain why phenomena occur, it
doesn't matter if the people who are part of the phenomena disagree.

------
declan
This is a solid decision that will curb abusive searches and help other Fourth
Amendment litigation, including ongoing cases involving warrantless cell phone
tracking. (That's because many of the concepts about the importance of mobile
devices are true in the tracking context as well.)

But it also shows how _long_ it takes for the legal system to fix these
problems. I wrote these articles over 7 years ago about how cops in San
Francisco and elsewhere were searching phones a decade ago, and the practice
has likely been going on for even longer: [http://news.cnet.com/Police-
Blotter-Cops-need-warrant-to-sea...](http://news.cnet.com/Police-Blotter-Cops-
need-warrant-to-search-cell-phone/2100-1047_3-6187389.html)
[http://news.cnet.com/Police-blotter-Cops-OK-to-copy-cell-
pho...](http://news.cnet.com/Police-blotter-Cops-OK-to-copy-cell-phone-
content/2100-1030_3-6177464.html)

This may be a lesson for HN readers trying to solve privacy problems.

Option #1, enacting a new law, tends to be an exercise in futility: California
rejected a fix to cell phone searches in 2011, and Congress did nothing on
cell phone searches (nor has it enacted a law to fix warrantless email
searches or rein in the NSA post-Snowden).

Option #2, relying on the courts, may work, but it may not. It took 10 years
to fix cell phone searches, and only after millions of dollars worth of
concerted advocacy by EFF, ACLU, etc. And it might have gone the other way:
remember the courts have blessed the erosion of Fourth Amendment protections
because of the War On Some Politically Unpopular Drugs.

Option #3, creating technology, works as soon as you can deploy it, and is
subject to the laws of mathematics rather than whether a SCOTUS justice is a
crankypants today when it comes to privacy. Of course the NSA may try to
subvert your encryption/anonymizer/etc., but its attempts may fail, and,
besides, intelligence agencies already subverted Congress long ago. :)

~~~
pdkl95
Option #4, All of the above.

Many of these issues are _both_ technological problems _and_ political
problems. Neglecting either is not a particularly good strategy.

~~~
declan
Sure, if resources were unlimited. But they're not, so you have to pick and
choose.

You're right that option #2 can work: EFF has represented me and a dozen or so
other plaintiffs in a case where we won at the Supreme Court, and the ACLU has
represented me in two cases. I'd be a hypocrite if I didn't admit the
possibility of winning is real. :)

But if you argue for option #1, history matters: what significant pro-privacy
law has Congress enacted in the last 15-20 years? (I can name plenty that have
gone in the _other_ direction.)

More to the point, HN readers are more likely to be in a position to pursue
option #3. We do have a few lawyers and law students here, but far more
engineers, CS students, and programmers.

~~~
HistoryInAction
Also, as a politicker, I can do much more when devs produce a 'crisis
situation' where the existing law is provably, laughably out of date due to
technological change.

Never neglect legislation (incumbents won't) but definitely focus on #3.

~~~
declan
Interesting point! I like your way of thinking, though (this is the curmudgeon
in me), I'd also suggest looking at some 'crisis situations' and legislative
responses:

* Porn exists on the Internet! LET'S PASS A LAW BANNING IT. That became the 1996 Communications Decency Act.

* Images of adult porn actors can be morphed to look like minors! LET'S PASS A LAW BANNING IT. That became the Child Pornography Prevention Act.

* U.S. citizens can use encryption that can't be easily broken by FedGov! LET'S PASS A LAW BANNING IT. That became the bill approved by one House of Representatives committee, which did not become law.

* Spam exists! LET'S PASS A LAW BANNING IT. Except the Can-Spam act actually _legalized_ spam with opt-out mechanisms and overruled state laws that actually did ban it.

* Internet piracy exists! LET'S PASS A LAW BANNING IT. The No Electronic Theft Act made it a federal felony punishable by years in prison to share a copy of, say, Microsoft Office with your friend.

* Gambling exists on the Internet! LET'S PASS A LAW BANNING IT. That became the Unlawful Internet Gambling Enforcement Act of 2006.

* Porn _still_ exists on the Internet! LET'S PASS A LAW BANNING IT IN SCHOOLS AND LIBRARIES. That became the Children’s Internet Protection Act.

* U.S. citizens _still_ can use encryption that can't be easily broken! LET'S PASS A LAW REQUIRING SURVEILLANCE BACKDOORS IN SOCIAL NETWORKS, EMAIL PROVIDERS, PHOTO SHARING STARTUPS, ETC. That became the FBI's draft legislation; my article disclosing details in 2012 is here: [http://www.cnet.com/news/fbi-we-need-wiretap-ready-web-sites...](http://www.cnet.com/news/fbi-we-need-wiretap-ready-web-sites-now/)

Politicians are reactionary. Some of the above laws did not get enacted or
were struck down; others are on the books today. We shouldn't count on
congresscritters to do the right thing when the law is provably, laughably out
of date. In fact, generally they do exactly the _wrong_ thing. :)

------
4k

       Warrentless cellphone searches are reasonable if only it falls within a specific exception to Fourth Amendment's warrant requirement. See Kentucky vs King.
    
    

I looked up Kentucky vs King on wiki. TL;DR warrantless searches conducted in
police-created exigent circumstances [0] do not violate the Fourth Amendment
so long as the police did not create the exigency by violating or threatening
to violate the Fourth Amendment.

So, does that mean if police knocked on my door suspecting I might delete
sensitive data on my phone before they get to it, are they still allowed to do
warrantless search of my cell phone?

[0]
[http://en.wikipedia.org/wiki/Exigent_circumstance_in_United_...](http://en.wikipedia.org/wiki/Exigent_circumstance_in_United_States_law)

EDIT: DO not start fucking downvoting just for the heck of it. May be I didn't
understand it well, does that mean I can't ask a question here?

~~~
tokipin
that would seem to be a similar argument to "if someone denies a police
officer entry to their home, that means they're suspicious and therefore there
is probable cause" which isn't valid

~~~
grecy
And yet we see plenty of videos on YouTube where a person is arrested for
resisting arrest and nothing else...

------
SoftwareMaven
A great decision, IMO, and the only sane decision for e.g. traffic stops (a
place where cell phone searches should never have been considered legal). It
probably won't alter things appreciably for somebody who is being arrested,
though. I can't imagine that warrant will be hard to get if the police have
enough on you to put you in cuffs.

~~~
nathanstitt
A warrant's has to also have legal justification, i.e. "reasonable suspicion".
If it does not, that's one more thing that can be argued at trial, with the
possibility that the search can be thrown out.

Of course, the only time that kind of stuff gets vigorously challenged is if
the defendant has top-notch legal representation. Public defender's typically
would rather just plea-bargain it out.

Still, it's great progress for keeping everything above board as much as
possible.

~~~
gnopgnip
Any legal defense would rather plea-bargain.

~~~
Phlarp
A _good_ legal defense will present these kinds of things during the
negotiation. Which could very well be the difference between a plea involving
time served and community service or one with a 10 year mandatory minimum.

------
sanderjd
I hope people are making it to Alito's partial concurring opinion at the
bottom. He goes into more detail about the history of searches and draws a
different conclusion about their rightful purpose than the "trilogy"
referenced by the majority opinion. He also points out that the ruling
actually puts cell phone data in a _favored_ position compared to physical
effects, and concludes that while a broad and easy to apply rule is the right
decision for the court, a more nuanced set of rules enacted by legislators may
be warranted.

Both opinions are great and illuminating reads!

------
higherpurpose
I haven't read the ruling yet, but it does include the fact that "collection"
of the data without "search" is also illegal - right? Otherwise it doesn't
change the mass surveillance situation much, and not that it's not illegal,
because the Constitution does say "seizures", too, but I just want it to be
clearly said by the Supreme Court so there's no doubt or room for "secret
interpretations".

~~~
declan
Different area of the law. Deals with search incident to arrest. Unrelated to
NSA litigation or surveillance authority.

------
brightsize
I wonder if this has any implications at all for the seizure and search of
phones and other digital devices by border agents? I suspect the answer is
"no" of course, since they're not exactly in the justice business like the
police in theory are. But they they _are_ (also in theory) subject to SCOTUS
decisions AFAIK, and maybe this decision signals a new attitude towards
digital device searches in general?

------
gr3yh47
The loss of Aereo sucks, but this is a much heavier positive ruling.

I wonder if this extends to the NSA's warrantless collection and to what
extent.

~~~
endersshadow
This portion of the ruling would be interesting to see used:

"We cannot deny that our decision today will have an impact on the ability of
law enforcement to combat crime...Privacy comes at a cost."

Roberts looked squarely into the "police efficiency" argument and shot it
dead. This was a remarkably scathing opinion of law enforcement's methods
w/r/t cell phones. I wonder if we'll see this used as part of the broader
challenge to the NSA. The EFF was just gifted an incredible opinion to
strengthen their case(s).

~~~
ihsw
Not really. Simply put, LE agencies have always been happy to directly and
unambiguously state that combating crime trumps privacy, and now they will do
so without hesitation.

It was only a matter of time until the issue of privacy was addressed, and now
that it has come to pass then the issue will cause polarization in politics.
Whether this is good or bad is up to you.

------
rl3
[http://www.cnn.com/2014/06/25/justice/supreme-court-cell-
pho...](http://www.cnn.com/2014/06/25/justice/supreme-court-cell-phones/)

 _Ellen Canale, a Justice Department spokeswoman, said the agency would work
with law enforcement to ensure "full compliance" with the decision.

"We will make use of whatever technology is available to preserve evidence on
cell phones while seeking a warrant, and we will assist our agents in
determining when exigent circumstances or another applicable exception to the
warrant requirement will permit them to search the phone immediately without a
warrant," Canale said._

------
pattisapu
Wow--in some jurisdictions the whole process of getting a warrant is done
remotely anyway:

> Recent technological advances similar to those discussed here have, in
> addition, made the process of obtaining a warrant itself more efficient. See
> McNeely, 569 U. S., at ___ (slip op., at 11–12); id., at ___ (ROBERTS, C.
> J., concurring in part and dissenting in part) (slip op., at 8) (describing
> jurisdiction where “police officers can e-mail warrant requests to judges’
> iPads [and] judges have signed such warrants and e-mailed them back to
> officers in less than 15 minutes”).

------
rdl
I love it when the legal process works as intended.

------
joering2
uhm, so local sheriffs bought stingray equipment and spent tens of thousands
of dollars on equipment they well know is illegal to use, and now with this
decision they will just shut it down and stop using it? Okay...

While this is "good news", its nothing more than that: a news. No change at
all will happen. Nothing! Your local sheriff is breaking the law. So what? Are
you gonna call law enforcement to arrest him? Good luck!

Yes, eventually they may be punished by Congress taking away some of their
founds. But I bet they will rather let go some officers, not maintain their
cars and guns properly, than stop harassing your privacy. Who knows -- perhaps
somewhere they will let a murder slip through cracks just to show how
important that technology is to "keep you safe", just like government has been
caught times and times again in false flags attacks.

Am I wrong?

~~~
Phlarp
This ruling was not specific to the use of stingray devices, those are still
legal to use if they have the proper warrant. What's illegal with stingrays is
lying about where the information came from on the warrant or in a trail. No
surprise lying to a court will get you in trouble.

This ruling absolutely will have an impact on the relatively widespread use of
those little memory dumping devices that cops love to use in routine arrests
and even traffic stops in some states.

~~~
joering2
Just exactly why you believe it will make any dent? With Holter behind steers,
why would you think anyone will require any sort of legality or transparity
from anyone that works for Government??

------
phkahler
How do we reconcile this "Officers may examine the phone’s physical aspects to
ensure that it will not be used as a weap on, but the data on the phone can
endanger no one." along with the notion that encryption algorithms are
considered munitions worthy of export restrictions?

~~~
dragonwriter
With the recognition that the export restrictions are based on potential
military application by a nation-state adversary which may require time and
other hardware and software to realize and that the permission to search for
weapons incident to arrest centers around immediate physical danger to the
arresting officer and others from the item itself, so the two things are not
concerned with even remotely the same considerations.

~~~
phkahler
This is the only response to my question that seems solid.

------
hisabness
the real issue is that most telcos will hand over whatever information the
govs seek. even if the information is inadmissible (which i'm not sure it is),
the govs would have all the info they need to put together a case.

------
mayneack
So what happens to everyone that has been arrested and convicted based on this
in the past? Are they suddenly able to appeal?

------
vaadu
How does this affect the TSA at the border when they want to inspect the
contents of your laptop or cell phone?

------
acd
Does this ruling also affect warrant less laptop searches?

------
_nullandnull_
The title is misleading. It should read "Warrantless cell phones searches
illegal for people police arrest".

~~~
adventured
No the title still works.

Police can't search your cell phone without a warrant.

Police that arrest you can't search your cell phone without a warrant.

~~~
_nullandnull_
Retort removed. No point arguing semantics with someone who doesn't know how
to use a comma.

------
0003
9-0. Nice.

------
bruceb
One goes against us (Aereo), one goes for us today. The reasoning for this
decision is pretty easy to understand and only takes a minute or so to read
the first two pages.

~~~
trose
Honestly, Aereo had it coming. You can't just take someone else's content and
stream it to other people for profit. I know it was a great service and we all
enjoyed it but I'm not going to sit around and pretend what they were doing
was legal. If the "victim" of their service was anything else besides the big
nasty cable companies I dont think anyone would be singing their praises.

~~~
tanderson11
Your comment misses the point of much of the dissent revolving around the
Supreme Court's decision. Aereo may very well have secondary liability for
copyright infringement enabled by its services, but that was not the question
brought before the court.

The question brought to the court was whether or not Aero has direct liability
for copyright infringement. This direct liability is only found if Aero
"volitionally" "performs" copyrighted material.

The opinion of the court uses a "looks-like-cable-TV" justification for its
treatment of Aero, as Scalia (dissenting) notes:

>"The injury claimed is not violation of a law that says operations similar to
cable TV are subject to copyright liability, but violation of §106(4) of the
Copyright Act. And whatever soothing reasoning the Court uses to reach its
result (“this looks like cable TV”), the consequence of its holding is that
someone who implements this technology “perform[s]” under that provision. That
greatly disrupts settled jurisprudence which, before today, applied the
straightforward, bright-line test of volitional conduct directed at the
copyrighted work."

Whether or not Aero has secondary liability does not matter; the Supreme
Court's vague ruling destabilizes existing jurisprudence and eliminates a
concrete test in favour of the immaterial "looks-like-cable-TV" criterion.

EDIT: formatting.

------
sramsay
> 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.

Anyone else concerned that the Chief Justice of the Supreme Court of the
United States appears to believe that Mars is an inhabited planet?

~~~
dragonwriter
I don't think you understand what the word "proverbial" means, which might be
worrying, were you, rather than John Roberts, the Chief Justice.

There's plenty of things that bug me about John Roberts being CJ, but your
complaint isn't one of them.

~~~
nknighthb
If I were a student at University of Nebraska-Lincoln, it'd certainly be
worrying to me that an Associate Professor of English at my school doesn't
understand the word "proverbial".

~~~
sramsay
I was, um, joking.

~~~
nknighthb
Could you point out the joke? I can't locate anything that could be
interpreted as one. It would be especially odd for it to be a joke since
you've been around HN long enough to know better.

~~~
sramsay
It was an egregious lapse in judgment. I am shutting down my computer now, and
will schedule an appointment with my therapist later today.

