egal Update! Can the Police Search Your Phone?

Earlier this month, I wrote a blog about two cases currently before the Supreme Court aboutwhether the police need a warrant to search a suspect’s mobile phone during an arrest. The original article is here if you need a refresher…

This week the court returned its decision and unanimously stated that there should be no new exclusion for warrantless mobile phone searches. This is a very important case for privacy, and not just because it seeks to protect a significant amount of private information that a suspect’s cell phone could reveal to the police. It’s because the vigor with which the justices sought to defend freedoms associated with privacy is particularly telling for future cases.

Chief Justice John Roberts himself made special mention of how important the contents of a cell phone are to an individual’s privacy:

“A cell phone search would typically expose to the government far more than the most exhaustive search of a house: a phone not only contains in digital form many sensitive records previously found in the home; it also contains a broad array of private information never found in a home in any form.”

One of the prosecution’s primary arguments was that data on a cell phone can be manipulated remotely, via cloud interactivity, and therefore the police should be granted powers to secure evidence before it could be changed (i.e. in the time it might take to get a warrant). Notwithstanding the fact that any specifically vulnerable evidence on a cell phone would already fall under the evanescent evidence rule allowing such a search, the justices actually turned this argument on its head and used the cloud to assert that a warrant should be secured before any such search could take place.

As Chief Justice Roberts explained, “Cell phone users often may not know whether particular information is stored on the device or in the cloud … moreover, the same type of data may be stored locally on the device for one user and in the cloud for another … officers searching a phone’s data would not typically know whether the information they are viewing was stored locally at the time of the arrest or has been pulled from the cloud.”

So there you go – the Supreme Court managed to all agree on something AND come back with the correct decision in a technology case! Also, more importantly, remember that the police don’t have a general power to search your cell phone during an arrest unless you specifically consent.