The Supreme Court on Tuesday heard arguments for two cases that could have significant implications on what it means to perform an "unreasonable search and seizure" in the era of smartphones.
At the center of each case is the question of whether it's lawful for police to search a person's mobile phone after he or she is arrested, without obtaining a warrant first.
Many of the justices indicated during oral arguments there should be some safeguards against unfettered warrantless searches on cell phones, though it's still unclear what those limits might look like. One suggestion was to limit cell phone searches only to data related to the suspected crime.
The Fourth Amendment prohibits unreasonable searches and seizures. A ruling is expected by the end of June.
Currently, some warrantless searches are permitted by the police after taking a suspect into custody: to search for weapons and to make sure no evidence is destroyed.
But critics of the practice as it now stands say mobile phones should fall beyond the scope of those searches because of the massive amounts of personal data they can now hold -- a technological advancement only seen within the last several years. Today's smartphones can store a trove of information, including photos, call and text records, Internet search history, financial information, and social media activity. Privacy advocate Andrew Pincus told NPR Tuesday that an iPhone 5 with the least amount of storage can hold 800 million words of text -- enough to fill more than a football field's length of books -- or over 8,000 photos, 260,000 private voice mails, and hundreds of home videos.
"People carry their entire lives on cell phones," said Justice Elena Kagan, according to court transcripts. "That's not a marginal case. That's the world we live in, isn't it?"
One of the cases at issue, Riley v. California, involves David Leon Riley, a San Diego man police arrested in 2009 for concealed weapons. After searching his phone, police found photos and call records that linked him to another crime. He was later tried and convicted of attempted murder. The other case, the United States v. Wurie, involves Brima Wurie, a Boston man who was charged with drug crimes after police searched the call log of his flip phone. Both cases were appealed.
"It has always been the case that an occasion of an arrest did not give the police officers authority to search through the private papers and the drawers and bureaus and cabinets of somebody's house," Jeffrey L. Fisher, Riley's attorney, said in opening arguments. "That protection should not evaporate more than 200 years after the founding because we have the technological development of smartphones that have resulted in people carrying that information in their pockets."
At the heart of the issue is not only the distinction between whether something is considered private information, but where that private information is located, said Jennifer Urban, a law professor at the University of California, Berkeley, and director of the school's Samuelson Law, Technology & Public Policy Clinic.
"When you're talking about a contemporary smartphone, you're not talking about a phone. You're talking about a computer," said Urban. "Because data on the phone is so rich, the reasonable burden on the police may look more like the burden of obtaining information on a computer in a house."
According to Urban's research, 60 percent of Americans believe the information on their phone is just as private as data on their computers -- and the opinion is even more strongly held among young people. She also said 76 percent believe police should obtain permission from a court before searching a cell phone.
Those in favor of the current practice say that phones should be searched before a warrant is obtained because someone could potentially wipe the data off the phone remotely, destroying valuable evidence. Some experts have suggested workarounds, like placing the phones in special bags that cut off radio signals to the devices so they can't be compromised. Critics say that none of those solutions are foolproof.
Fisher suggested to the justices today that police should have to define in their warrant what specifically they could look at on a phone, and what was off limits. For example, a dating app may be restricted. When Chief Justice John Roberts said it would be hard to judge what's needed, Fisher replied, "Those arguments can be made on an app-by-app basis."
The court threw around numerous scenarios. Chief Justice Roberts asked about the distinction between a phone and a Fitbit, a wearable fitness band that can track a person's steps and heart rate. Fisher thought the same argument against searching applied, and said the example even bolstered his view of personal smartphones: "It tells you modern smartphones work the inside of people's houses. They work the appliances and they have cameras. They also monitor the inside of people's bodies."