Let’s remind ourselves as to what the Fourth Amendment says:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Say you’re a pastor who gets pulled over because one of your headlights stopped working without you knowing about it. Perhaps you resemble a recent report of a mugging and, as a result, you get arrested. It is a quickly-corrected mistake, but something happens during the time you are arrested: In many places an arrest means your phone can be searched. And that means your email can be searched, your private Facebook messages, and your notes which you keep on Evernote so that they are accessible in your phone as well as on your computer.
As a pastor, this data includes the names of couples in counseling and many details about their private lives are “on” your phone. So are you notes as you help a family deal with a child who has come under the influence of bad friends and experimented with under-aged drinking. All of this is now available to the police even though it has nothing to do with your arrest and no warrant was sought to get the content of your phone.
Plainly, this is a violation of the Fourth Amendment. The police are using your arrest as an excuse to go on a fishing expedition without any probable cause. And yet it is done all the time.
But that might change. The Washington Times reports:
The Supreme Court has agreed to decide whether police need a warrant to search the cellphones of people they have arrested.
Justices said Friday they’ll hear appeals in two cases in which criminal defendants were convicted and sentenced at least in part on the strength of evidence obtained by warrantless searches of their cellphones.
At issue is a 40-year-old high court ruling allowing warrantless searches of items people are carrying when they’re arrested. Lower federal and state courts have differed over whether the ruling should apply to increasingly sophisticated cellphones, including even more advanced smartphones.
Obviously, the old phones only stored phone numbers. Most people were not carrying a small computer around that happened to also send and receive phone calls.
But will the Supreme Courts understand this? I’m a little bit worried, mainly due to this AP story from last August:
The members of the Supreme Court continue to communicate with one another through memos printed on ivory paper even as they face the prospect of hearing cases related to emerging technology and electronic snooping in the years to come, Justice Elena Kagan said Tuesday.
The justices have a ways to go to understand technology such as Facebook, Twitter and even email, Kagan said in a conversation with Ted Widmer, a historian and librarian at Providence’s Brown University who has been an adviser to Bill and Hillary Clinton.
“The justices are not necessarily the most technologically sophisticated people,” she said, adding that while clerks email one another, “The court hasn’t really ‘gotten to’ email.”
They had better “get to” it before they make a ruling on this issue! And they’d better improve before an NSA case comes before them.