Phone privacy inches toward US Supreme Court

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The U.S. Supreme Court may soon address an issue it has carefully avoided until now: how much privacy Americans enjoy regarding their cellphones.

With 4G speed, the issue is on its way to the Supremes – “probably this upcoming term,” according to Orin Kerr, a criminal-procedure professor at George Washington University Law School in Washington.

Cellphones have grown over the last 10 years from simple devices for making calls and sending text messages to advanced personal computers combining communications, video recording, extensive data storage, web and social media connectivity and more.

Citing this wealth of personal information, attorneys and other civil-liberty advocates are challenging police searches of cellphones performed without benefit of a warrant.

Even tracking the location data provided by many mobile devices should require a warrant, they say, just like searches of a suspect’s home, PC or private emails.

Law enforcement officials counter that the expectation of privacy regarding messages that can be easily viewed on a cellphone, or data that’s been voluntarily shared with service providers, is much lower than with other so-called “closed containers.”

In the middle is the Supreme Court, which has been wary of taking on a full Fourth Amendment-fueled mobile-device analysis.

In 2010’s City of Ontario v. Quon, the court diffused the privacy question by ruling the employer’s acquisition of employees’ text-message transcripts was reasonable, based on mitigating circumstances.

“A lot of people thought that Quon would be a major decision about the expectation of privacy in emerging technologies,” said Jeffrey Welty, professor at the UNC School of Government in Chapel Hill, N.C. “But the court ultimately resolved it in a narrow way.”

Several cases percolating in the lower courts could soon give the justices fresh swings at the privacy pitch. Whether police may conduct warrantless searches of cellphone contents after a lawful arrest, and to what extent, is one of several issues that may reach the court as soon as this term.

A majority of state and federal courts have allowed police to search arrestees’ phones to some extent, but the variety of incidents and responses is leading some judges to request Supreme Court guidance.

In a July 30 order regarding a Massachusetts case where a lawfully arrested defendant was charged with an additional string of crimes – including weapons possession and intent to distribute narcotics – Chief Judge Sandra Lynch of the 1st Circuit Court of Appeals cited “differing standards” developed by multiple courts and said they “provide confusing and often contradictory guidance to law enforcement.”

Indeed, opinions regarding the constitutionality of warrantless cellphone searches vary dramatically from court to court.

The Massachusetts Supreme Judicial Court held in 2012 that a limited search by police incident to a legal arrest didn’t violate the Fourth Amendment, while Rhode Island is appealing a 2012 state Superior Court ruling that a similar search of text messages stored on a cellphone, performed during an arrest, was unconstitutional.

State courts in Minnesota, Ohio and other states have weighed in with alternating conclusions, as have the 4th, 5th and 7th Appeals Circuits.

“I think the preferable course is to speed this case to the Supreme Court for its consideration,” Lynch wrote.

Also gaining steam are questions about whether police need a warrant to obtain historical cellphone location data from providers – theoretically allowing investigators to track an individual’s movements over time.

The 5th Circuit in New Orleans ruled recently that obtaining historical location information without a warrant upheld the common standards set by the Stored Communications Act, which imposes lower standards than those required by a probable-cause warrant – but that ruling conflicted a recent decision out of the 3rd Circuit in Pennsylvania.

While law enforcement argues that acquiring such information is often crucial to criminal investigations, civil liberties groups say relaxing probable-cause standards threatens the privacy rights of the 85 percent of Americans who carry cellphones.

“We are talking about getting a complete record of every place you’ve been, whether it’s the doctor’s office or an AA meeting or a night at a lover’s house,” said Nate Wessler, staff attorney with the ACLU’s New York-based Speech, Privacy and Technology Project.

Wessler is the lead author of an amicus brief filed on behalf of the ACLU of Maryland, the National Association of Criminal Defense Lawyers and other groups regarding U.S. v. Graham, a pending case in the 4th Circuit in Virginia.

The defense is appealing a federal district court ruling that investigators’ warrantless gathering of 221 days of phone-location information didn’t violate the defendants’ rights, because the information was the cellular provider’s business records, not the defendants’ private data.

Despite the desire by many, including some lower courts, for the Supreme Court to quickly take up these issues, the justices have been wise to wait, according to Kerr, the George Washington University law professor.

“The court should delay reaching a decision until the technology has stabilized somewhat,” Kerr said. “They could say, ‘Let’s not focus on how the technology works, and instead think about what kind of world we want to live in, and whether we want this kind of information to be private.’”

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