Friday, August 1, 2014

The Supreme Court's huge new cellphone privacy ruling, explained

1. What was today's Supreme Court decision about cellphones?

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Win McNamee/Getty

Today, the Supreme Court ruled that it's illegal for cops to search a suspect's cellphone without a warrant. In the words of Jim Harper of the libertarian Cato Institute, "It's not reasonable for law enforcement to search a phone just because they seized it. Simple."

The opinion was written by Chief Justice John Roberts, with all nine members of the court signing on. It's the result of two cases — a federal drug and gun case from Massachusetts, and a state gun case from California — where the defendants were charged and convicted based on evidence cops found while searching their phones.

2. Why were there two different cases?

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Remember these? Ulrich Baumgarten

One case (Riley v. California) involved a smartphone; the other (United States v. Wurie) involved a search of a flip phone.

Before you make a joke about how passé flip phones are, bear in mind the Wurie case was based on an arrest in 2007. The first iPhone had just come out, and nearly all cellphone owners had flip phones. The Riley case was based on a 2009 arrest, when smart phones were a lot more common.

Because flip phones can store a lot less data than cellphones, and aren't as likely to interact with external cloud servers to get data, the Court wasn't sure that it should treat both cases as the same. So when it heard oral arguments in April (when both sides argued their cases in person), it looked at both cases independently.

But in fact, the court decided, both phones had access to digital data that cops shouldn't have unrestricted access to. So today's decision covers both cases, because it uses the same reasoning.

3. Why was today's decision important?

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Not the most hip and with it. Chip Somodevilla/Getty

The Supreme Court has had other cases about privacy and technology. And in most cases, the government has said that new technologies aren't that different from old ones — so the old rules for searches and surveillance, which allow law enforcement to do a lot, should still apply.

According to Hanni Fakhoury of the Electronic Frontier Foundation, which advocates for privacy rights, the Supreme Court has historically been "very nervous about weighing in on the constitutionality" of particular technologies or searches. That means they've issued very limited decisions. And it means that they've tended to defer to the government's arguments rather than getting into the nuts and bolts of new technology.

Today's opinion, Fakhoury says, "is really one of the first decisions that actually tackled the technology head on."

4. What did the government want the court to say?

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The government thinks this photo-sharing should go the other way, too. Boston Globe via Getty

The government argued that the old rules allowing cops to search physical objects applied to cellphones as well, so cops wouldn't need a warrant. But they also suggested some "fallback options" in case the court wanted to require warrants in some cases but not others:

Allowing warrantless searches if it's reasonable to believe it holds evidence relevant to the crime. This is the standard for car searches. But that standard, the court says, would "prove no practical limit at all when it comes to cell phone searches." There's so much information in a cellphone that any cop could "come up with several reasons" to conduct a search, no matter the crime.

Searching only the areas of the phone that could have information about the crime, who the suspect was, or officer safety. The court shot this down for the same reason: that's still a massive amount of data.

Getting just information that police would be able to get through other means. The government argued that if, for example, it could just ask the phone company for a record of the suspect's calls, it might as well get them from the phone itself. But the court said, as Fakhoury puts it, "No, no, it doesn't work that way. You went and got the information directly, and that's different." That, he says, establishes an important distinction based on how the government can get information.

Searching just call logs. This is based on the Supreme Court decision that allows the government to collect phone metadata without a warrant — the decision used to justify the NSA's warrantless surveillance. But the court says that the reason metadata is okay is because it's not a search at all, so it doesn't apply to this case.

5. What exactly does the Supreme Court decision change?

The Supreme Court didn't give the government anything it wanted.

Instead, the court said, police officers shouldn't be allowed to search a cellphone without a warrant, period.

Cops are allowed to search a person's body after they arrest him, and they're allowed to examine any physical items they find. That includes opening things up to see what's inside them: in one of the cases referenced in today's decision, police opened a cigarette pack they'd found in a suspect's pocket and discovered heroin inside. And police are allowed to search arrestee's cars under certain circumstances. In all of those cases, the court has decided that searches don't seriously threaten an individual's right to privacy — at least not once he's already been arrested.

But today, they declared that the reasoning that makes it okay to open a pack of cigarettes doesn't make it okay to search a cellphone:

Modern cell phones, as a category, implicate privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet, or a purse.

And because of that, they say, cops need to get a warrant to search a phone in nearly all cases — just like they would have to get a warrant to search a house. The implication is that the court recognizes that today's technology requires new rules for what people can expect to keep private.

6. Why are cellphones different?

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Anthony Weiner knows all too well why cellphone privacy is important. Mario Tama/Getty

They can store a lot of information. The court considers a phone with 16 gigabytes of storage space on it (like the iPhone 5c or Samsung Galaxy S4). That's equivalent to "millions of pages of text, thousands of pictures, or hundreds of videos." And that means that it's possible to reconstruct someone's entire life just based on data found on the phone:

The sum of an individual's private life can be reconstructed through a thousand photographs labeled with dates, locations, and descriptions; the same cannot be said of a photograph or two of loved ones tucked into a wallet.

In the court's mind, that's a lot of privacy to give up for not a lot of law enforcement benefit.

They often store very personal information. The court compares this to everyone walking around with a diary all the time:

A decade ago officers might have occasionally stumbled across a highly personal item such as a diary, but today many of the more than 90% of American adults who own cell phones keep on their person a digital record of nearly every aspect of their lives.

The court even uses the catchphrase "there's an app for that" to point out how much extra information is on users' phones. They call all this information "the privacies of life."

In fact, the court's language to describe how personal cell-phone data is could be read as a reference to sexting:

They have access to remote cloud servers that are nowhere near the person under arrest. Even the federal government, which argued in favor of cops being able to search phones, agreed that it wouldn't be okay for cops to access information from cloud servers. But the court points out that cops probably don't know where information is stored just by looking through the phone.

When you take all of these together, the court concludes, it's ridiculous to say that cellphones aren't different from other things that could be in someone's pocket:

The United States asserts that a search of all data stored on a cell phone is "materially indistinguishable" from searches of these sorts of physical items...That is like saying a ride on horseback is materially indistinguishable from a flight to the moon. Both are ways of getting from point A to point B, but little else justifies lumping them together.

In fact, the court says, searching a cellphone is even more intrusive than searching a house. And since cops definitely need a warrant before searching a suspect's house, they should have to get one for his phone, too.

7. Are there any exceptions?

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There's an emergency exception for cellphone searches, too. Ulrich Baumgarten via Getty

Yes. There was already a loophole that allowed cops to conduct warrantless searches of things that would otherwise require a warrant, if there were "exigent circumstances." That exception applies to cell-phone searches too. But it has to be determined on a case-by-case basis.

8. Why didn't Justice Alito agree with the whole decision?

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Justice Alito didn't have any other friends on the Court on this one. Paul Zimmerman/WireImage

Justice Alito wrote a concurrence — he voted with the rest of the court for the criminal defendants over the government, but he wanted to make it clear that his reasoning was slightly different from Chief Justice Roberts'.

Basically, Alito thought that the Chief Justice's opinion didn't give enough respect to police officers' need to get evidence about a crime by searching the suspect. Roberts' opinion said that the reason for officers to search a suspect was to protect their safety and prevent evidence from getting destroyed; Alito thinks that it's also legitimate for the law to allow searches just because of the evidence they provide. But he still agreed that it wasn't reasonable to allow cellphone searches for this reason just because cops can search physical objects.

Alito also explicitly called on Congress and state legislatures to make new laws that could guide warrantless cellphone searches. Alito's concurrence calls the Fourth Amendment a "blunt instrument" — he thinks that cellphone searches are too important to 21st-century crime-fighting for the question of regulating them to be left up to the courts.

9. Is this surprising?

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Via Flickr user @daquellamanera

Moderately, yes.

This Supreme Court doesn't have a reputation for being favorable to privacy rights. Chief Justice Roberts is also responsible for appointing judges to the Foreign Intelligence Surveillance Court: the secret court that rules on whether programs like the NSA's are legal. He's packed that court with judges who are, in the words of the New York Times, "likely to defer to government arguments that domestic spying programs are necessary."

After the oral arguments, many spectators worried that because the Supreme Court justices themselves weren't very tech-savvy, they wouldn't recognize just how important phones are to most people, or how much information they can contain. They also worried, in Fakhoury's words, that "the court was trying to find some middle ground that would allow police to search in some circumstances." But Roberts' opinion shows the court got that argument loud and clear.

10. What does this mean for the NSA?

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An anti-NSA rally. Via Flickr user @susanmelkisethian

It might not mean much. But it might mean a lot.

Jim Harper of Cato points out, Roberts' decision does include a reference to Smith v. Maryland — the case the government uses to justify NSA surveillance. But it distinguishes that case from the ruling it made today.

"It feels like Roberts wanted this to be a smooth consensus case, maybe to avoid opening hot issues like the NSA," Harper says.

But the government's use of Smith v. Maryland to justify NSA surveillance is another example of government saying new technologies should be governed by the same Supreme Court decisions as old ones. Fakhoury of the Electronic Frontier Foundation thinks today's decision put a big hole in that standard.

As he puts it, "differences in how government collects information, and differences in the scope of information that's collected, should matter for Fourth Amendment purposes." He and other privacy advocates will now use that to argue that "just because collecting one person's cellphone records for three days is okay, doesn't mean collecting everyone's phone records is okay."

Justice Alito does allude to the issue of surveillance in his concurrence — but he uses it as a good example of Congress passing a law to make something legal, after the Supreme Court ruled it violated privacy rights.

11. Can a cop still ask to look at my phone?

Yes. If police get your consent to look through your phone, it's legal.

But if you don't want to waive your rights, you can just say, "I do not consent to a search."

If you're really hardcore, you can get one of these:

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via Flickr user @makototakeuchi

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