Opinions

Police should be able to seize a suspect’s phone — sometimes

Gary Shapiro is president and chief executive of the Consumer Electronics Association, a trade association of more than 2,000 companies. His books include “Ninja Innovation: The Ten Killer Strategies of the World’s Most Successful Businesses.” The views expressed here are his own.

The Obama administration has petitioned the Supreme Court to hear a case that would decide whether law enforcement has the constitutional right to perform a warrantless search of someone’s cellphone at the time of arrest. In numerous cases, courts have found that, at such a time, the Constitution allows police to search certain objects in a suspect’s immediate possession. But the law governing cellphone searches ought to be updated to ensure that a suspect’s reasonable expectation of privacy is protected.

In the case under review, United States v. Wurie, police seized a cellphone from a suspected drug dealer arrested in Massachusetts in 2007. They accessed its call log without a warrant and traced the suspect’s home number, which led them to his house. After obtaining a warrant to search the home, they found a stash of drugs and weapons. The suspect appealed his subsequent conviction, arguing that his Fourth Amendment rights had been violated. The U.S. Court of Appeals for the 1st Circuit agreed this year, saying he had a reasonable expectation of privacy and any evidence obtained by violating that expectation without a warrant was inadmissible.

In appealing that decision to the Supreme Court, the Obama administration argued that use of the man’s phone was allowable, as the arresting officers’ action was narrow and they searched only a small amount of information. Officials say the warrantless search was based on a court-created, well-defined allowance to search nearby items in conjunction with an arrest.

I side with the administration. It’s well established that police may search evidence accompanying a suspect that is relevant to the crime of arrest, such as a suspect’s car, address book or diary. The cellphone in the 2007 case — an older, flip-screen model — was with the suspect when he was arrested and was relevant, as police believed he had arranged drug transactions by phone. The type of police search that led to his address — looking through the phone’s call log — is no different from flipping through an address book or journal.

Smartphones, however, are a different matter. The iPhone — released the year of the arrest in this case — and its rivals are much more powerful than older phones. Today’s smartphones and tablets are computers and hold vast amounts of personal information — not just contacts and text messages but also photographs, videos, e-mails, social media accounts, banking information and more. And tablets and smartphones will only become more innovative. Today, 66 percent of online U.S. adults own such a device, according to an August survey by the Consumer Electronics Association.

The questions that courts should be thinking about include: What if the confiscated phone is a password-protected smartphone? What if it is a tablet requiring biometric access? Can police try to recover the password or force the biometric key to access confidential information as part of an arrest?

When a person takes the precaution of using a password or biometrics to limit access, it’s clear that person expects his or her information to remain private. With smartphones and tablets storing greater and more sensitive data than older mobile phones can, it is reasonable to expect greater privacy. Violating that expectation of privacy without a warrant clearly contradicts the Fourth Amendment. Granted, it may be appropriate to do so in an exigency, such as a life-threatening situation — but any information thus obtained could not be used as evidence in a court of law.

The rapid advancement of smartphone and tablet technology demands that we address these issues before they become even more complex. The Fourth Amendment sets the standard for searches at the time of arrest: the reasonable expectation of privacy. Anything infringing that threshold requires a warrant and must be based on probable cause.

While the administration’s request in Wurie seems fair, the Supreme Court should be careful about what kind of precedent a broad holding might set. Emerging products, such as Internet-connected glasses, implantable medical devices and other wearable computing devices, make it important to balance the legitimate needs of law enforcement with Americans’ reasonable expectation that, absent a warrant, their private information will remain private.

 
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