The nine justices of the U.S. Supreme Court spoke with a rare unanimous voice Wednesday, telling cops and sheriffs what Congress and the states should have said loud and clear years ago: “Get a warrant.”
A policeman’s lot is a frustrating one in the best of times, and a policeman usually does what he thinks he must to catch the evildoers (and mere miscreants). This sometimes has meant doing it with the latest high-tech machines, gadgets or search techniques without stopping to ask permission. The cops prefer to leave the legal details for the lawyers.
It’s the job of legislators to step in when the thin blue line extends beyond constitutional boundaries, yet the politicians have been reluctant to update the law to keep pace with the digital age. In the era of one electronic marvel quickly following another, the politicians have allowed the police to act without the restraints set out in the Fourth Amendment of the Constitution.
The Constitution says government police agents must go to a judge to get a warrant based on “probable cause” to examine the “papers and effects” of a citizen. The police prefer to operate as though this clear directive doesn’t apply to the digital version of “papers,” such as those stored in a cellphone.
San Diego police didn’t take the trouble to get a warrant five years ago when they snooped through the flip phone of one David Riley, which contained an address book, photographs and video clips linking him to a gang-related shooting. The officers seized the phone as they were putting Riley under arrest for driving with a suspended driver’s license. The officers argued they were entitled to search the cellphone as part of the arrest. They could properly look through someone’s pockets to make sure he was not concealing a knife. Why not a cellphone?
Answering that argument, the justices, in an opinion written by Chief Justice John Roberts, observed that a cellphone might fit in a pocket, but it contains far more information than the police could uncover even in rummaging through a suspect’s house — and searching a house clearly requires a warrant.
Using the term “cellphone” understates the capability of the modern smartphone, a device that 167 million Americans now use to accomplish a wide variety of tasks. “They could just as easily be called cameras, video players, Rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps or newspapers,” the chief justice wrote. Just because this information is stored in a pocketable device “does not make the information any less worthy of the protection for which the Founders fought.”
The broad wording suggests the high court may be open to reining in other, related warrantless digital incursions. At international borders, for example, lower courts continue to allow federal agents to examine computer hard drives, digital cameras, smartphones and other electronic devices of anyone booked on an international airline flight. These searches are made without evidence of a crime, without a warrant or finding of probable cause.
Law enforcement officers have been pushing the dangerous legal argument that warrants are unnecessary when seizing computer data that happens to be held by third-party companies. Increasingly, emails are stored “in the cloud,” a remote server of companies such as Google, Yahoo or Microsoft. Law enforcement authorities have been arguing they can read whatever they want without a warrant because the suspect no longer is holding the information “personally.”
What the high court did Wednesday was to reaffirm the principle that it’s the right to hold information inviolate that the Constitution protects, regardless of the form the information takes. It’s not too much to ask officers to “get a warrant.”