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Robert Barnes, Published August 05 2013

US Supreme Court may have to decide on cellphone privacy

WASHINGTON – Chief Justice John Roberts didn’t hesitate last fall when a questioner asked him about the biggest constitutional challenge the Supreme Court faced.

Roberts told the audience at Rice University in Houston that the court must identify “the fundamental principle underlying what constitutional protection is, and apply it to new issues and new technology. I think that is going to be the real challenge for the next 50 years.”

Amid a national debate over how much government should be able to find out about the private activities of its citizens, the next issue seems teed up for Supreme Court review: cellphones.

More than 85 percent of Americans carry one, and they provide authorities with more than just a vast record of a person’s travels and phone calls.

“That information is, by and large, of a highly personal nature: photographs, videos, written and audio messages (text, email and voicemail), contacts, calendar appointments, Web search and browsing history, purchases and financial and medical records,” Judge Norman Stahl of the U.S. Court of Appeals for the 1st Circuit wrote recently.

Stahl wrote for the majority in a 2-to-1 decision that applied the Fourth Amendment to the search of a cellphone found on a man arrested for selling drugs. The amendment protects “the right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures.”

In most cases, a warrant is required. But the Supreme Court has said there are numerous exceptions to that general rule. In particular, a warrantless search is justified when officers are protecting themselves by looking for weapons or securing evidence that might be destroyed.

And justices in the past have been lenient about allowing searches of items found on a person who has been legally arrested.

But Stahl and fellow Judge Kermit Lipez disagreed with the government’s contention that a cellphone is “indistinguishable from other kinds of personal possessions ...” approved by the Supreme Court.

Tracking a person’s whereabouts via a cellphone and searching it for information after an arrest raise different Fourth Amendment questions. But the justices know that a rapidly changing technology landscape complicates their work.

In his Houston speech, Roberts said the coming decisions will test how “prescient” the framers were in developing a document that can deal with a world they could not have foreseen.