- The Washington Times - Sunday, July 6, 2014

Rulings on contraception and recess appointments may have grabbed bigger headlines, but the Supreme Court’s decision last month requiring police to get a warrant before snooping through someone’s cellphone is likely to have a bigger lasting impact.

The 9-0 decision already has police, lawyers, members of Congress and lower courts mulling over the implications for other 21st century technology and, in particular, what the justices’ legal reasoning means for the future of National Security Agency’s phone-snooping program, cloud computing and police’s cellphone-tracking requests.

Chief Justice John G. Roberts Jr.’s opinion in last week’s case, Riley v. California, didn’t deal with the NSA. But it was the way he approached the issue of smartphones — declining to apply 20th century precedents to new technology, and instead going back to the founders’ first principles — that is likely to spur the shake-up.

“There’s language in the opinion that suggests the court is going to be receptive to pro-privacy arguments we’re going to raise,” said Hanni Fakhoury, staff attorney at the Electronic Frontier Foundation, which has brought some of the lawsuits that are pushing a rethink of understanding of privacy.

The Riley case, with its companion case, U.S. v. Wurie, follows a 2012 ruling in U.S. v. Jones, wherein the court held that police trespassed when they went on someone’s property to install a GPS tracker on a suspect’s car and kept it there longer than their warrant allowed.

The Supreme Court has been chipping away at the government's warrantless data harvesting, including a ruling that forbids cellphone snooping without a warrant. (Associated Press)
The Supreme Court has been chipping away at the government’s warrantless data ... more >

“There have now been three cases in the last couple years raising significant Fourth Amendment issues in the new digital age, and the government has now lost all three of them unanimously,” said Nathan Freed Wessler, staff attorney at the American Civil Liberties Union. “I think it’s a strong signal that the court is paying close attention to the need to develop 21st century rules for 21st century searches.”

In the cellphone cases, the government had argued that a cellphone was like a piece of paper or anything else police find when they ask someone to turn out his pockets. Under previous precedent, police were allowed to use information gleaned from that kind of search.

But Chief Justice Roberts said browsing through a cellphone went beyond just looking at a piece of paper.

In a ruling that went into details such as gigabytes of storage space and “apps,” or applications, the court said the intimate details of someone’s life can now be stored in a pocket — information that clearly fell within the protections the founders envisioned for the Constitution.

“For one of the very first times, the court is thinking like a regular person. It’s talking about apps; it’s talking about [how] you carry 1,000 pictures. It’s talking about [the] real world,” Mr. Fakhoury of EFF said.

Now lawyers are asking what else that kind of reasoning can be extended to.

Courts are already grappling with searches at the border, where authorities have confiscated laptops and perused their contents. And federal appeals courts have issued split rulings on whether police need a warrant to ask a cell company for the information tracking where someone’s phone has been — a way of potentially linking someone, by geography, to where a crime was committed.

The big question in legal circles is what happens with a 1979 case, Smith v. Maryland, which held that installing a pen register to track telephone numbers someone calls is not a search, so the government doesn’t need to get a warrant to get that information.

In that decision, the court reasoned that the consumer was voluntarily turning the information over to the telephone company and so didn’t have a legitimate expectation of privacy.

Hotly debated since, the Smith ruling has come under particular scrutiny in recent months with the revelation that the government was tracking the time, duration and numbers involved in most calls made in the U.S.

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