This article was originally published by the Electronic Frontier Foundation.
Changing Technology Demands New Rules for Police
San Francisco — The Electronic Frontier Foundation (EFF) asked the U.S. Supreme Court Monday to set limits on warrantless searches of cellphones, arguing in two cases before the court that changing technology demands new guidelines for when the data on someone’s phone can be accessed and reviewed by investigators.
The amicus briefs were filed in Riley v. California and U.S. v. Wurie. In both cases, after arresting a suspect, law enforcement officers searched the arrestee’s cellphone without obtaining a warrant from a judge. Historically, police have been allowed some searches “incident to arrest” in order to protect officers’ safety and to preserve evidence. However, in the briefs filed Monday, EFF argues that once a cellphone has been seized, the police should be required to get a search warrant to look through the data on the phone.
“Allowing investigators to search a phone at this point — after the device has been secured by law enforcement but before going to a judge and showing probable cause — is leaving 21st Century technology outside the protections of the Fourth Amendment,” said EFF Staff Attorney Hanni Fakhoury. “If we’re going to truly have privacy in the digital age, we need clear, common-sense guidelines for searches of digital devices, with meaningful court oversight of when and how these searches can be conducted.”
In the not-so-distant past, our pockets and purses carried only limited information about our lives. But in the age of the smartphone, we are walking around with a complete, detailed history of our work schedules, our medical concerns, our political beliefs and our financial situations. Our phones include pictures of family gatherings, videos of friends, apps that help manage our health and our money, and email and text messages from both our personal and professional lives.
“Our phones include an extraordinary amount of sensitive information — our past, our present, our plans for the future,” said Fakhoury. “We can’t let investigators rummage through this data on a whim. It’s time for the Supreme Court to recognize the important role that judicial oversight must play in searches of cell phones incident to arrest.”
Today’s brief was filed in conjunction with the Center for Democracy and Technology. The brief was authored with the assistance of Andrew Pincus of Mayer Brown LLP and the Yale Law School Supreme Court Clinic.
For the full brief filed in Riley and Wurie:
For more on search incident to arrest:
Electronic Frontier Foundation