Friday | November 24, 2017
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Make the right call on cellphone searches

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

— Fourth Amendment to the U.S. Constitution

The U.S. Supreme Court heard arguments earlier this month for two police search and seizure cases involving evidence obtained without a warrant from arrestees’ cellphones. These cases go to the heart of Americans’ Fourth Amendment rights in the digital age, and could have sweeping implications for our daily interactions and uses of digital devices.

In United States v. Wurie and Riley v. California, both the federal government and the state of California argued that when someone is arrested, police should have the right to search his or her cellphone without a warrant, just as they do with other effects, such as one’s wallet or purse. In the Wurie case, a government brief even claimed, “the search of a cellphone is no more intrusive than other actions that the police may take once a person has been lawfully arrested.”

Fortunately, if the oral arguments are any indication, the court may not be buying this line of reasoning, as justices on the Left and the Right were highly critical.

Justice Elena Kagan noted that under this interpretation those arrested for such minor offenses as driving without wearing a seatbelt would be subject to warrantless police searches covering nearly every aspect of their daily lives — email and text messages, Facebook and Twitter posts, bank records, medical data, calendar appointments and even one’s movements (via GPS tracking data) all would be fair game.

Justice Antonin Scalia similarly found such a prospect “absurd.” Less clear is where the court might draw the line, however.

Some will argue that the Constitution is outdated, not least because the founders could not have predicted certain technological or cultural advancements, but the principles embodied in and protected by that document are the same today as the day it was signed: government agents do not have the right to rifle through all your belongings without a warrant or conduct open-ended fishing expeditions for incriminating evidence. The fact that technological advances allow us to carry more information in our pockets than a horse-drawn cart full of books and other writings during the founders’ era is irrelevant.

Let us hope the Supreme Court upholds these vital privacy and private property protections.

— From the Orange County Register


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