Does Cell-Phone Case Imperil NSA Spying?

Though the Republican-controlled U.S. Supreme Court often splits 5-4 on partisan and ideological issues, a consensus is emerging against the governments electronic intrusion on personal privacy, which could portend trouble for NSA spying, says Marjorie Cohn.

By Marjorie Cohn

In one of the most significant Fourth Amendment rulings ever handed down by the Supreme Court, all nine justices agreed in an opinion involving two companion cases, Riley v. California and United States v. Wurie, that police generally need a warrant before reading data on the cell phone of an arrestee.

This decision may well presage how the Court will rule on the constitutionality of the National Security Agency (NSA) metadata collection program when that issue inevitably comes before it.

U.S. Supreme Court

There has always been a preference for search warrants when the police conduct a Fourth Amendment search or seizure. But, over the years, the Court has carved out certain exceptions to the warrant requirement, including the search incident to a lawful arrest.

The 1969 case of Chimel v. California defined the parameters of this exception. Upon a lawful arrest, police can search the person of the arrestee and areas within his immediate control from which he could secure a weapon or destroy evidence.

Four years later, in United States v. Robinson, the Court confirmed that the search incident to a lawful arrest is a bright-line rule. These types of searches will not be analyzed on a case-by-case basis. If the arrest is lawful, a search incident to it needs no further justification. It does not matter whether the officer is concerned in a given case that the arrestee might be armed or destroy evidence.

In Riley/Wurie, the Court declined to apply the search incident to a lawful arrest exception to searches of data contained on an arrestees cell phone. Chief Justice John Roberts wrote for the Court that the dual rationales for applying the exception to the search of physical objects protecting officers and preventing destruction of evidence do not apply to the digital content on cell phones: There are no comparable risks when the search is of digital data.

Moreover, [m]odern cell phones, as a category, Roberts noted, implicate privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet, or a purse. Responding to the governments assertion that a search of cell phone data is materially indistinguishable from searches of physical items, Roberts quipped, That is like saying a ride on horseback is materially indistinguishable from a flight to the moon.

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Does Cell-Phone Case Imperil NSA Spying?