The courtroom of the US Supreme Court, via Ken Yu/Flickr
The United States Supreme Court has agreed to hear a pair of cases that revolve around the controversial practice of police searching through cell phones without warrants. While it's heartening to see the 40-year-old case law that governs such searches get scrutiny from the court, one of the cases—and arguably both—hinges on technology that's already out of date.
The older of the two cases up for the Supreme Court is US v. Wurie, which dates back to 2007, and is based on the collection of caller ID info from an arrestee's flip phone during jailhouse processing. The second case, Riley v. California, involves the 2009 arrest of a San Diego gang member; when police searched his smartphone during arrest, they found evidence of his gang membership and other evidence linking him to a prior shooting.
At the heart of the two cases is US v. Edwards, a 1974 case that ruled searches of items on an arrestee's person are legal without a warrant. Of course, the case had nothing to do with cell phones; it hinged on a man who was arrested late one night in 1970 for attempting to break into a post office. The next day, his clothes were exchanged for jail-issued items, during which his original clothes were searched and evidence tying him to the break-in was found.
The Supreme Court ruled 4-3 that such searches are legal, and the case has since been used to justify the search of even cell phones during the course of an arrest. Along with other case law from the 70s, such as US v. Robinson, which set precedent for the warrantless searching of "containers" on an arrestee's person, such warrantless search powers during arrest have since been applied to cell phones.
The Wurie case is particularly interesting because, as SCOTUSblog explains, the Supreme Court agreed to the government's appeal in full. By not limiting the discussion to case specifics, as we'll see the court did with Riley, the court may have set Wurie up as the more influential of the two cases, despite it focusing on outdated technology. (At this point, that's just an educated case based largely on the court's rewriting of the Riley petition, which may limit its scope.)
The Wurie case stems from the arrest of Brima Wurie, a suspected drug dealer whose flip phone kept ringing during booking at a Boston police station. The officer cataloging Wurie's effects said he saw caller ID info reading "my house" listed on the flip phone's outer screen (remember those?), and thus opened the phone to find out the phone number.
An online white pages search found an address listed with the phone number, and officers were dispatched to "freeze" the house until a search warrant was obtained. With warrant in hand, officers found 215 grams of crack and other paraphernalia. Wurie's defense has since argued that the original phone search was unlawful without a warrant, and the First Circuit Court of Appeals agreed last year, leading to its appearance on the Supreme Court docket.
Wurie is significant because it's also a case that the White House highlighted as part of a request to the Supreme Court for more clarity on warrantless phone searches. In its petition to the court, the Justice Department says the Wurie question focuses specifically on a phone's call logs, for which there is plenty of precedent in support of such searches based on Edwards interpretations.
Of course, Wurie also hinges on a flip phone, which is increasingly an outdated bit of tech—last year, smartphone sales eclipsed feature phone sales for the first time, according to research firm Gartner. From a practical standpoint, looking at the caller ID on a flip phone with no lock screen is no different than looking at phone number popping up on a smartphone. But when you consider warrantless searches as a whole, looking at a flip phone is far, far different from searching through a smartphone, which has access to more personal data than anything else a human carries on his or her person.
If the Supreme Court fails to make that distinction, and Edwards is ruled to apply to cell phones in general, the Wurie decision would have troubling privacy ramifications.
To that end, Riley does actually apply to a smartphone. When police found Riley's smartphone, they extracted evidence of his membership in a gang and relationships with other gang members, all of which was used at trial. As EPIC notes, cops were able to glean data from Riley's phone thanks to a so-called data-extraction device, which are tools used by police to suck up data off phones with ease.
But SCOTUSblog's Lyle Denniston explains that, unlike Wurie, the Supreme Court rewrote the Riley petition to hone in solely on the question of whether or not the specific evidence used in Riley's trial was legal to acquire without a warrant.
Because the Riley evidence consists largely of text correspondence, a photo of Riley next to a car used in a shooting, and call logs—essentially, the same stuff you could find on a dumb phone—the Riley ruling runs the risk of setting precedent for warrantless smartphone searches without actually addressing any of the immense troves of personal data unique to smartphones. Denniston also notes that the court decided not to combine the two cases, which means that the case with the broader question, Wurie, is based fully on outdated tech.
As EFF staff attorney Hanni Fakhoury told Brian Fung at the Washington Post, this means the Supreme Court's much needed assessment of warrantless phone searches could completely miss commenting on the specific capabilities of smartphones, which would set precedent without acknowledging the current state of the art.
The privacy ramifications of pulling caller ID info off an unlocked flip phone absolutely pale in comparison to police extracting the vast trove of personal correspondence and data—emails, bank info, location info, social interactions, and so on—that we keep on our smartphones with the expectation that screen locks and passwords will keep them private.
We can't know what the Supreme Court will do until it does it, and the current group of justices already has a reputation for defying prediction. But what's particularly concerning about the two cases up for review is that the court may end up avoiding the smartphone question at all. Note that neither case questions the constitutionality of data extraction devices, which are a far bigger privacy threat than a cop reading a phone number. And if those technologies aren't addressed, or if the court doesn't rule narrowly to the cases at hand, their use without warrants may end up with further legal support.