Jack Shafer, Reuters, Published April 17 2014
Column: Cell phone search case is easy call for Supreme CourtLater this month, the court will doff their robes and don their scuba gear to dive to the bottomless depths of the Fourth Amendment and determine whether police can search your mobile phone without a warrant, upon arresting you.
As my Reuters colleague Lawrence Hurley reports, the law has permitted police searches of wallets, calendars, address books and diaries at the time of arrest, "primarily to ensure the defendant is not armed and to secure evidence that could otherwise be destroyed." But two defendants, David Riley in California and Brima Wurie in Massachusetts, maintain that police and prosecutors overstepped those powers when they searched the defendants' cell phones, and used digital information gleaned, without warrant, to convict them.
The cases pose a question that would have never occurred to the Framers or to nearly all previous members of the Supreme Court, whose idea of evidence was analog. Consider, for example, the size of the personal library of Thomas Jefferson, the most ardent bibliophile of the period in which the Bill of Rights were written. In 1815, the Library of Congress purchased his library of 6,487 volumes after the British torched its collection. That may sound like a lot of books, but it's pitifully small by modern measures. The 64 gigabyte iPhone in my pocket could hold more than 60,000 text-only books (following Amazon's rough rule of thumb of 1,500 books per 1.4 gigabytes).
That's a lot of data, and it includes GPS trails of where I've come and gone, voluminous email correspondence, an audit of the websites I've visited, gobs of direct messages, photographs, an enormous address book, and hundreds of assorted document files. It also connects to my cloud accounts, where I store even more data.
While my phone is mostly filled with music and audio books, I don't look forward to the day that, say, a drunk and disorderly arrest exposes all of its contents to a prosecutor because a police officer is looking for additional criminal evidence. My smartphone has become my life's locker, my attic and basement storage, a portal to my effects, the virtual home that the Framers sought to protect.
Like Jefferson, I don't want anybody rifling through my books, correspondence, papers, documents and other personal data unless they possess a warrant issued "upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized," to pinch the text of the Fourth Amendment.
The usual gang of civil libertarians has filed friend-of-the-court briefs with the Supreme Court, decrying the warrantless searches as violations of our Fourth Amendment rights. But even though neither Riley nor Wurie were doing journalism when arrested, a brief filed by 14 news organizations - including the National Press Photographers Association, the New York Times, E.W. Scripps, and Advance Publications - senses the First Amendment implications of warrantless phone searching, correctly noting that the smartphone is one of the journalist's most indispensable tools.
The brief doesn't argue for the court to carve out special rights for professional journalists. The advent of such new technologies as mobile phones bestowed upon everybody a greater power to make news, it acknowledges, and it mounts a defense of the acts of making journalism as opposed to a defense of the credentialed. Without strong Fourth Amendment protections, the brief maintains, the First Amendment cannot survive for long.
Without sounding too much like a Wired magazine essay from the 1990s, it's hard to imagine a First Amendment tool more powerful, portable, affordable and essential than a smartphone. From the brief:
"Coverage of breaking news frequently involves contact with police, and journalists have been threatened, arrested, and sometimes charged for doing nothing more than engaging in newsgathering activities. The same has happened to private individuals who use cell phones to record and document newsworthy events, as advanced technology has made citizen reporting more ubiquitous."
It's impossible to imagine a modern journalist doing his work for long without a smartphone in his pocket or purse. As a text input and text transmission device, it supplants the printing press. Its camera can produce newsreels or documentary images, and thanks to its telephonic powers it can stream live news video to the Web or TV. It's a digital archive, a data journalism cruncher, and an audio recorder of interviews. It's the go-anywhere, do-anything tool, used by professionals and non-professionals alike.
For news consumers, the smartphone has become a personal newsstand, a substitute for the post office, and a TV/radio receiver all-in-one. Even though a smartphone user may never shoot a video or write a story on his device, he has a right under the Constitution to speak and read anonymously, a right that is violated by warrantless searches. (Thomas Paine's "seditious" pamphlets were written under pseudonyms.) The First Amendment also protects the right to receive information and ideas, because without such a right the First Amendment right to publishing is meaningless, and it's hard to reconcile warrantless searches with free news consumption.
(I leave to you as a homework assignment a treatise on the smartphone's growing importance to the rights to assembly and to petition the government with grievances, as well its place in our Fifth Amendment protections against self-incrimination. Hint: You'll find everything you need to complete the assignment in the media's organizations' brief.)
Thomas Jefferson and James Madison were more attuned to the link between privacy and freedom of speech than any modern civil libertarian, as the brief notes. The two sometimes corresponded in code so that their thoughts could not be intercepted by foes. If they were writing today, I have no doubts they'd be encrypting their emails and denouncing warrantless searches of cell phones. And the Supreme Court, once they've changed back into their priestly garments, should install encryption software on all of their devices, and do the same.