The Fourth Amendment of the Constitution gives citizens protection from “unreasonable search and seizure,” a stipulation that has long prevented United States government agents from collecting information without a specific reason for doing so. While this constitutional protection does not cover information in “plain sight” or that is carried on a person, the proliferation of smartphones which carry vast sums of personal data have blurred the line of how far that constitutional protection extends.
Whether or not police and government agents have the right to search smartphones as part of the standard evidence collection process heads to the Supreme Court on April 29, in Riley v. California. And the pending decision could alter the personal freedoms enjoyed by United States citizens.
In the case at hand, David Leon Riley was pulled over while driving with a suspended license. After finding guns in his car, police searched his smartphone and found evidence that eventually lead to Riley being charged with attempted murder. Though the case is illustrative of a situation where searching a cellphone may have sent a criminal to jail, civil rights activist say that does not justify an expansion of warrantless search options.
Andy Pincus, a partner at law firm Mayer Brown LLP and a member of the Center for Democracy & Technology (CDT) says that classifying information stored on smartphones in the same category as “pocket litter,” is a refusal to bring the Constitution into the modern era.
In an amicus brief filed on behalf of the CDT, Pincus says, “prior to the advent of digital technology, an individual could transport information only if the information was printed on paper, etched on vinyl, or recorded on film. That reality restricted the total amount of information that a person could carry. And it meant that individuals did not routinely have on their persons large amounts of personal information, particularly personal financial and medical information.”
The new reality is that almost every United States citizens carries a cellphone, nearly half of which are smartphones offering exponentially greater storage potential. Pincus says that if the Supreme Court ruling allows agents to search cellphones as standard practice, the type of information originally protected under the Constitution is at risk of being used against citizens without due process.
“There’s an argument, that when you’re arrested you should have a dramatically reduced expectation of privacy, but that theory was recognized in an era when it wasn’t physically possible to carry as much of this information with you,” Pincus says.
Also relevant to the case is the increasing integration of cloud storage with smartphones. Phones no longer offer access solely to the information physically stored on them, they are also portals to troves of data stored remotely and possible containing massive amounts of personal information. “In the early days of smartphones everything was stored on the physical dive, now we’re in a hybrid model with a seamless access between the device and the cloud,” Pincus says.
With no distinguishable difference between information stored on the drive and in the cloud, phones collected as part of the arrest process could reveal detail about a person’s life never intended to be accessible without a warrant.
As for whether or not the corporate legal team should be concerned, Pincus says that concerns about the expansion of evidence collection do not stop with the citizen. “I have a Mayer Brown BlackBerry that not only has personal emails on it, but many that have to do with work and clients. Under the government’s theory, if I was stopped for a traffic violation they could download the entirety of that device.”
Despite criticism surrounding the ways they’ve handled privacy concerns stemming from National Security Association data collection practices, the Obama administration is in favor of expanding searches to the information stored on cellphones.
Oral arguments in the case will kick of April 29, and a decision should be forthcoming later this year.
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