Remember the Fourth Amendment in the Bill of Rights? Considered one of the “top 5” American rights, it’s the one that grants privacy from illegal searches and seizures.
Well, the privacy waters have been significantly muddied in California, where last week the state’s Supreme Court gave a green light allowing police officers to search a suspect’s cell phone without a warrant.
This means a law enforcement official could see the entire contents of your smartphone, including text messages, emails, phone records, photos, videos, and even your Angry Birds score.
The Golden State’s 5-2 majority ruling relied on decisions from the 1970s which allowed searches of cigarette packages and clothing seized during an arrest. The judges also relied on a 2007 case in which police accused a man trying to sell six pills of ecstasy; police had confiscated the man’s cell phone and read a text message that said “6 4 80,” which they interpreted as “Six pills for $80.” The suspect plead guilty but later appealed the search of his cell phone.
Mark Rasch, the former head of the Justice Department’s computer crime unit, says the ruling “isn’t just wrong, it’s dangerous,” and the door is open for police to search the entire contents of iPhones or other smartphones that people routinely carry.
A Tale of Two Courtrooms
With this ruling, California’s Supreme Court judges have done little to enhance the state’s tech-savvy reputation. Some may argue that equating a cell phone with a pack of cigarettes is questionable at best, simplistic at worst.
Indeed, the Supreme Court of Ohio ruled in December 2009 that a cell phone is actually more like a laptop, holding vast amounts of personal information and subject to greater privacy protections.
In the case of State v. Smith, the judges said police must have a warrant in order to search the contents of a cell phone when seized during an arrest with two minor exceptions: if the search was necessary to protect the immediate safety of officers or others, and if they believed the individual may delete evidence.
ACLU of Ohio Staff Counsel Carrie Davis explains that “the modern cell phone is often not used simply to make and receive calls — many people use them to access the Internet, manage finances, house personal photos, catalog personal contact information, and a host of other functions. The Court clearly holds that law enforcement cannot go on ‘fishing expeditions’ and search this information without a warrant.”
It would appear that the Ohio Supreme Court had paved the way for greater privacy protections, but more than a year later and thousands of miles away, the California judges appeared perplexed by its responsibilities in keeping up with the fast pace of technology.
In its ruling, the California judges asked:
“How would a court faced with a similar argument as to another type of item determine whether the item’s storage capacity is constitutionally significant? And how would an officer in the field determine this question upon arresting a suspect?”
The ruling could be overturned by the U.S. Supreme Court, but until then, law enforcement officers in California can legally look through any content on a suspect’s cell phone – maybe even your cell phone.
This is perhaps a dangerous legal precedent, since evolving mobile technology is quickly becoming a big part of our personal lives. If the government says it’s entirely legal to read our text messages and other personal information, the integrity of our computer privacy rights will be compromised.
So unless this case gets overturned by the federal Supreme Court, it might not be a bad idea for California residents to brush up on the Fourth Amendment, put a password on their smartphone, and brush up on the “right to remain silent” Fifth Amendment which may add another layer of privacy protection in the event law enforcement authorities demanded the phone’s password.