Big Ruling on the Privacy Front

This is welcome news:

In a major statement on privacy rights in the digital age, the Supreme Court on Wednesday unanimously ruled that the police need warrants to search the cellphones of people they arrest.

Chief Justice John G. Roberts Jr., writing for the court, said the vast amount of data contained on modern cellphones must be protected from routine inspection.

The old rules, Chief Justice Roberts said, cannot be applied to “modern cellphones, which are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy.”

The courts have long allowed warrantless searches in connection with arrests, saying they are justified by the need to protect police officers and to prevent the destruction of evidence.

But Chief Justice Roberts said neither justification made much sense in the context of cellphones. On the other side of the balance, he said, is the data contained on the typical cellphone. Ninety percent of Americans have them, he wrote, and they contain “a digital record of nearly every aspect of their lives — from the mundane to the intimate.”

Even the word “cellphone” is a misnomer, he said. “They could just as easily be called cameras, video players, Rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps or newspapers,” he wrote.

Chief Justice Roberts acknowledged that the decision would make law enforcement more difficult.

“Cellphones have become important tools in facilitating coordination and communication among members of criminal enterprises, and can provide valuable incriminating information about dangerous criminals,” he wrote. “Privacy comes at a cost.”

Why is it so uncommon for common sense to win? Regardless, this is a great ruling. Now, if we could get the federal government to stop seizing computers and phones at the border, that would be nice, too.

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67 replies
  1. 1
    Tone In DC says:

    Now, if we could get the federal government to stop seizing computers and phones at the border, that would be nice, too.

    DHS did that to Amy Goodman a few years ago, as she and her producers were headed for Vancouver. She let them have it, on the air, for days afterward.

  2. 2
    Tommy says:

    This seems like a huge ruling to me. I was late to get a smart phone because I work on a computer all day and when I am not working honestly I didn’t want to be “connected.” I just had a phone that let me make and receive calls. Now I’ve had a smart phone for 18 months I am stunned how much information about me is on it. I am not doing anything illegal but if the police want to look at it they better have a warrant.

  3. 3

    They don’t need your cellphone. They know all there is to know about you, including the location of the mustard.

  4. 4
    greennotGreen says:

    @schrodinger’s cat: Thanks, SC! I’m having a stressful day, and a good laugh just makes things go better!

  5. 5
    Arclite says:

    My favorite part of the story:

    The Justice Department, in its Supreme Court briefs, said cellphones are not materially different from wallets, purses and address books. Chief Justice Roberts disagreed.

    “That is like saying a ride on horseback is materially indistinguishable from a flight to the moon,” he wrote.

    I really didn’t expect this ruling to go this way, never mind 9-0. Even more amazing when I’ve read that most of the justices don’t use email or have a smartphone.

  6. 6

    I’m a SCOTUS pessimist so this outburst of common sense makes me terrified that they’re gonna uncork a stinker. Again.

  7. 7
    Mnemosyne says:

    I understand the police claim that a warrantless search for weapons might be necessary to make sure an arrestee doesn’t whip out a knife or a gun unexpectedly, but the claim that it was ohmigodsourgent to search someone’s cell phone without a warrant always seemed bogus to me (and, fortunately, to the Court as well).

  8. 8
    Comrade Dread says:

    As I suspect he will eventually elevate corporations to full personhood later this month, I’m curious if he said anything about whether your employer will need one to access your phone to make sure you aren’t using any portion of your paycheck (which is really just employer’s money that it gives you) to buy condoms and birth control pills.

  9. 9
    FlipYrWhig says:

    I think we need to formulate a digital privacy bill of rights. The old rules and laws about where our information is, to whom it belongs, and how it feels when someone else gets it… those just don’t describe the current reality. And getting to work on it would be a great opportunity for the liberal/libertarian/civil libertarian alliances we keep hearing about.

  10. 10
    Arclite says:

    @schrodinger’s cat:

    They don’t need your cellphone. They know all there is to know about you, including the location of the mustard.

    Yes, but the mustard remains both honey mustard AND Dijon until you open the sandwich.

  11. 11
    Comrade Dread says:

    @FlipYrWhig:

    And getting to work on it would be a great opportunity for the liberal/libertarian/civil libertarian alliances we keep hearing about.

    Libertarian alliances simply aren’t possible. You get two of them into the same room for any length of time and you’ll end up with 5 lifelong grudges and several formal disassociation statements posted on their blogs.

  12. 12
    MikeJ says:

    ROBERTS, C. J., delivered the opinion of the Court, in which SCALIA, KENNEDY, THOMAS, GINSBURG, BREYER, SOTOMAYOR, and KAGAN, JJ., joined. ALITO, J., filed an opinion concurring in part and concurring in
    the judgment.

    That kind of spread means it should have never had to get to the supremes.

  13. 13
    FlipYrWhig says:

    @Arclite: I wouldn’t have guessed that wallets and purses were searchable without a warrant. There’s private stuff in there! Tampons, condoms, medications, family pictures. There’s a sphere of intimacy that should cover those containers, IMHO. Although I take Mnem’s point about how cops could cite weapons as something that needs to be searched for immediately. But even so…

  14. 14
    FlipYrWhig says:

    @Comrade Dread: Touché.

  15. 15
    srv says:

    But the jackboots still have my meta data!

  16. 16
    nancydarling says:

    Now, if the Supremes and other courts would just respect the privacy of women’s uteri as much as they respect their cell phones!

  17. 17

    This is great news! Glad SCOTUS understood how technology works for once. I guess it’s just because all the conservatives have iPhones so they were able to imagine the police looking up their Tinder records without a warrant or something. Cuz civil liberties only matter to conservatives when it affects them personally, cf. Andrew Sullivan

  18. 18

    @greennotGreen: You are welcome.

    Here is your moment of Zen, not to be confused with Zen kitteh

  19. 19
    WaterGirl says:

    @ranchandsyrup: That was my first thought. There’s no grift or money or even a political side to this, so for the supreme court to do the logical thing is “free”. I truly wonder how they are about to screw us next.

  20. 20
    Citizen_X says:

    @Arclite:

    Yes, but the mustard remains both honey mustard AND Dijon until you open the sandwich.

    Those who ascribe to the “strong” version of Quantum Sandwich Theory hold that you don’t even know if you have mustard or mayo until you open the sandwich.

  21. 21
    Someguy says:

    Aaaand a court in the 9th Circuit refudiated the No Fly list.

    We haven’t gotten rid of all the Bush policies but this is a good start.

  22. 22
    beergoggles says:

    This just proves that the SCOTUS members probably have midget goat porn on their phones or something else equally embarrassing.

    I just can’t see any other reason for conservatives to sympathize or relate to ordinary people.

  23. 23
    Cluttered Mind says:

    @Someguy: Repudiated or Refuted. Refudiated is Palinese. Other than that, very happy to read your comment.

  24. 24
    CONGRATULATIONS! says:

    As I suspect he will eventually elevate corporations to full personhood later this month

    @Comrade Dread: You’re a bit late. Depending on how you count it, that was done in either:

    1886: Santa Clara County v. Southern Pacific Railroad
    1919: Trustees of Dartmouth College v. Woodward

    For quite the depressing read, check out the Wikipedia article on Corporate Personhood.

  25. 25
    Pogonip says:

    @Arclite: Schroedinger’s mustard!

  26. 26
    bruceJ says:

    @ranchandsyrup: Ayup! I’m betting they rule that your boss’s religious superstitions override your insurer’s right to provide you with health care coverage, if you have those yucky yucky ladybits.

    Thank your lucky stars you don’t work for a Jehova’s Witness or Christian Scientist.

  27. 27
    Keith G says:

    Now it seems that on this topic that the Obama administration has some work to do to catch up with the Roberts court.

    Who’d a thunk it?

  28. 28
    elftx says:

    LOL the Only reason they voted for it is because they themselves use cellphones.

  29. 29
    Omnes Omnibus (the first of his name) says:

    @Mike J: It was properly before the Court to resolve a split between Circuits.

  30. 30
    Bill Arnold says:

    @CONGRATULATIONS!:

    You’re a bit late. Depending on how you count it, that was done in either:

    But, can corporations vote? And how often?

  31. 31
    Bill Arnold says:

    @Tommy:

    This seems like a huge ruling to me.

    Read it. You’ll find it surprisingly non-irritating (as a tech person). Even mentions Faraday bags.

  32. 32
    JGabriel says:

    Even the word “cellphone” is a misnomer, [Justice Roberts] said. “They could just as easily be called cameras, video players, Rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps or newspapers,” he wrote.

    I’m thinking we should start calling them: nanocomputers.

  33. 33
    FlipYrWhig says:

    @Keith G: If I were an executive branch official, I’d want to have maximum discretionary powers, not all of which I’d use. Even if I didn’t believe I ought to have them, I’d like for a court to tell me that I did. I figure that’s the same dynamic at play here.

  34. 34
    taylormattd says:

    Now, if we could get the federal government to stop seizing computers and phones at the border

    Huh? This is a thing?

  35. 35
    Hal says:

    This story was being covered on Talk of the Nation recently, and the panel seemed doubtful that the court had enough experience with modern tech to really grasp how much information smart phones contained. I honestly thought this would come down to a 5-4 decision again. Now, when is the Hobby Lobby case decision set to come down?

  36. 36
    Omnes Omnibus (the first of his name) says:

    @Hal:

    the panel seemed doubtful that the court had enough experience with modern tech to really grasp how much information smart phones contained.

    They have clerks.

  37. 37
    Keith G says:

    @FlipYrWhig: It does not make it right. And it is a bit counter to the notions spoken by candidate Obama in 2008.

    In today’s environment in particular I want Supreme Court Justices who are vigilant about civil liberties. Because I think that when people are afraid–and terrorism has created fear–then that’s when the greatest danger to civil liberties happens. It’s easy to be for civil liberties when there are no threats. It’s when there are threats that you start seeing civil liberties chipped away at. So I want a President I want a Supreme Court that is not just giving the President a blank check for whatever power grab he or she is engaging in.

    By the way that also means that when I’m President one of the first things I’m going to do is call in my attorney general and say to him or her I want you to review every executive order that’s been issued by George Bush–whether it relates to warrantless wiretaps, or detaining people or reading e-mails, or whatever it is–I want you to go through every single one of them and if they are unconstitutional or they are encroaching on civil liberties unnecessarily we are going to overturn them we are going to change them.

  38. 38
    Culture of Truth says:

    I’ve followed this case for a while. It’s not really a huge or suprising ruling, given other recent rulings in this area. The big takeway is a recognition of the amount of information in cell phones, but the ruling is as much about the justification of searches incident to arrest, which are exceptions to the Fourth Amendment. There’s a reason it was unanimous.

  39. 39
    CONGRATULATIONS! says:

    @Keith G: In light of the last couple of years revelations, that kind of hurts to read.

    If there is something that Obama has completely and utterly, without any doubt or questions, failed at, it’s defending America’s civil liberties. And not through Republican obstruction: he owns this one himself.

  40. 40
    burnspbesq says:

    @MikeJ:

    That kind of spread means it should have never had to get to the supremes.

    Au contraire, mon frere. The case came from the San Diego branch of the California Court of Appeal. If there’s a more pro-prosecution state appellate court outside Texas, I’d like to know what it is. And the Cal Supremes denied review, which suggests that they were down with the Court of Appeal’s ruling.

  41. 41
    Bill Arnold says:

    @Culture of Truth:

    big takeway is a recognition of the amount of information in cell phones

    That, and that some of the information in a phone is actually in a data cloud, and also that the amount of information we carry on our persons will grow. If my calculator didn’t break, a 1 carat memory diamond (sort of a completely-impractical thought-proof-of-concept, sequences of carbon 12/13 representing bits) could hold 4.8 * 10**21 bits. When future police start seizing engagement rings, and diamond bling…
    (when we can read/write something like memory diamond, diamond jewelry will have a different social meaning.)

  42. 42
    burnspbesq says:

    @Hal:

    the panel seemed doubtful that the court had enough experience with modern tech to really grasp how much information smart phones contained.

    Well, then that panel was comprised of a bunch of fucking ignorami. This case is absurdly easy.

    The logic behind the search-incident-to-arrest exception to the warrant requirement is based on two principles: reducing the risk of harm to the arresting officer, and avoiding the destruction of evanescent evidence. Neither of those concerns are implicated by requiring a warrant to look at the contents of a smartphone.

    If you had any doubts about how this case was going to come out, it can only be because you reject the idea that judges will follow the law.

  43. 43
    Omnes Omnibus (the first of his name) says:

    @Keith G: Just off hand, which executive order was used to justify searches of cell phone as part of a search incident to a request? I am going to guess that there isn’t one. Holder could well have gone through every Bush executive order and rescinded each one without changing this policy. Today’s decision was a good one. Obama does not have an impressive record on this issue, but the fact that searches of phone contents occurred is not a violation of the promise you cited above.

  44. 44
    burnspbesq says:

    @taylormattd:

    This is a thing?

    Yup, and there isn’t a single plausible argument that can be made that that thing is unconstitutional. For fourth amendment purposes,the border is different.

  45. 45
    Roger Moore says:

    @Omnes Omnibus (the first of his name):

    It was properly before the Court to resolve a split between Circuits.

    I think he’s suggesting that if it was this obvious to the Supreme Court, the lower courts should have come to the same answer. It’s a nice theory, but it doesn’t work out that way as often as you’d think. My layman’s impression is that this happens because the Supreme Court comes out with a lot of decisions that are suggestive but don’t cover the exact case in question, and different lower courts use different ones as the basis for their rulings. So one court says that the ability to go through somebody’s pockets when you arrest them means it’s also OK to go through their cell phone, and another one sees that you need a warrant to go through somebody’s computer and thinks that’s the appropriate precedent.

  46. 46
    burnspbesq says:

    @Omnes Omnibus (the first of his name):

    Not to mention, it’s hard to imagine how rescission of a Federal executive order might influence the behavior of the San Diego PD.

  47. 47
    Baud says:

    @Roger Moore:

    The Court was quite anti Fourth Amendment during the early drug war years. That resulted in a number of decisions that have turned easy questions into hard ones.

  48. 48
    burnspbesq says:

    @Roger Moore:

    I actually think it’s simpler than that. Unless cops have been told by their local DA, unequivocally, in simple declarative sentences containing no words with more than two syllables, that they cannot do Thing X, they will do Thing X.

  49. 49
    Roger Moore says:

    @burnspbesq:
    That explains the origin of the case; it doesn’t explain why lower courts sided with the police.

  50. 50
    Omnes Omnibus (the first of his name) says:

    @Roger Moore: Elected, tough-on-crime judges who are willing to stretch the Fourth Amendment as far as possible.

  51. 51
    burnspbesq says:

    @Roger Moore:

    It’s San Diego, Jake.

  52. 52
    FlipYrWhig says:

    @Keith G: The executive branch doesn’t have to do what’s right, it just can’t do what’s illegal, and will make an argument that what it has done is not strictly illegal, until that argument loses. That’s just separation of powers stuff: until you, Judiciary, tell me I can’t, I’ll act on the basis that I can. I’m surprised when executive branches do anything other than this, because their natural tendency is to amass power and claim discretion. Like I said, I’m glad for them to lose, but I don’t hold it against them that they tried to win. That’s what they do. And that’s why the American system has checks and balances built in.

  53. 53
    FlipYrWhig says:

    @Omnes Omnibus (the first of his name): I want more Third Amendment jurisprudence.

  54. 54
    Omnes Omnibus (the first of his name) says:

    @FlipYrWhig: So get your buddy Obama to start quartering troops in wingnut houses.

  55. 55
    Baud says:

    @Omnes Omnibus (the first of his name):

    Bundy Ranch seems like a good place to start.

  56. 56
    Omnes Omnibus (the first of his name) says:

    @Baud: Fair enough.

  57. 57
    Keith G says:

    @Omnes Omnibus (the first of his name): Through the last 5 + years there have been numerous stories citing many instances of federal officials engaging in problematic behavior.

    Some of it is just tone where the leader of this government could make it very clear that reporters should not have their electronics confiscated or that re-entry into this country should not be delayed as a way to randomly harass travelers. TRMS has brought up instances where the FBI has behaved in ways more suitable to life under the previous administration. It’s also about a lack of promised transparency which is all the more important as citizens try to confront problems that they are having.

    Executive orders? That’s a cute dodge. I bet if I had the time, I could look up a few, but that’s not what I am able to do and I bet that you know that.

    It’s really more about commitment from the top down. And that is just not where this president’s priorities are – not where he advertised they would be.

    As was typed up thread by another…it’s disappointing.

    Edit

    Actually, here is one order from the executive branch that is idiotic

  58. 58
    Omnes Omnibus (the first of his name) says:

    As I have said before, I am not disappointed by Obama on these issues because I never really expected better. Someone who would do what you and I would probably like on civil liberties is unelectable at this time. I figured Obama was going to be better than any Republican because I figured he would at least make an effort to comply with the actual laws on the books.

  59. 59
    Omnes Omnibus (the first of his name) says:

    @Keith G: An executive order and a directive to the staff of an agency from its director are not remotely the same thing.

  60. 60
    FlipYrWhig says:

    @Omnes Omnibus (the first of his name): It won’t get interesting until there are things _like_ quartering troops in houses. Maybe a law to put a spycam in every private residence, found unconstitutional by the penumbras and emanations of the Third Amendment. That would be fun.

  61. 61
    FlipYrWhig says:

    @Omnes Omnibus (the first of his name): @Keith G: Executive branches support executive power. That’s the nature of the beast. If Obama were still a senator, not President, he’d want the legislature to hem in the powers of the executive. If Obama were a public interest lawyer, he’d want a totally different set of things. When you’re the president, you want the president to have the power to do things that if you weren’t the president you wouldn’t want him or her to be able to do. I don’t find that concerning or disappointing. When Dick Cheney had a theory that the Vice President was a special fourth branch of government, _that_ was ridiculous. I don’t know of Obama advocating anything half as laughable as that.

  62. 62
    Keith G says:

    @Omnes Omnibus (the first of his name): That is a very important directive that fundamentally changes how transparent (from bad to worse) the operations of these agencies are. So Obama has no influence in the formation and implementation of such policies in his government?

    Hell, even W and Cheney did’t do this. I bet they are thinking, “Damn it, we could have gotten away with even more obnoxious shit had we thought of that!”

    No government likes their people talking to the press (unless it is a politically expedient leak – and Obama has had a few of those), but frankly, modern democratic governance depends on an informed public…and sometimes that information has got to get around artificial barriers put up by those who should be informing their fellow citizens.

    By agreeing to that directive, Obama is tightening down on the flow of information and increasing the opaqueness of the security state whose growth is quite worrying.

  63. 63
    Omnes Omnibus (the first of his name) says:

    @Keith G:

    So Obama has no influence in the formation and implementation of such policies in his government?

    I did not say that. And for what it is worth, I denounce NSA Directive 119. Nevertheless, it is not an executive order.

  64. 64
    LT says:

    “Chief Justice Roberts acknowledged that the decision would make law enforcement more difficult.”

    Kinda like with whistleblowing intel secrets, and democracy in general.

  65. 65
    Omnes Omnibus (the first of his name) says:

    @Omnes Omnibus (the first of his name): Also, the directive would most likely be found to be void for vagueness and and overbreadth if it ended up in court.

  66. 66
    Keith G says:

    @Omnes Omnibus (the first of his name): Hope so. And with that, I am going to continue on my “Beers of the US” tour…

    Tonight it’s Alaska’s Freeride APA from Juneau’s Alaskan Brewing Co….

    And watch episode 5 of season 1 of The Wire.

    Yeah, I’m a bit late, but it’s still awfully good.

  67. 67
    David Koch says:

    It only took 27 comments for Dead-End Hillbots to twist and distort this news story for purposes of Obama bashing.

    Slackers.

    You guys need to step up your self-destructive ODS if you have any chance of alienating every Obama supporter into staying home on election day.

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