Editorial: Searching for Signals
Advances in digital technology seem to constantly present new challenges to the legal system, which is having trouble keeping up. A case heard by the U.S. Supreme Court this week, though, makes us wonder whether it’s not that technology is transforming the law as much as it is simply presenting familiar problems in a new guise.
The issue before the court Tuesday was whether police need warrants to search the cell phones of people whom they arrest. Under prevailing precedents, law enforcement authorities are generally permitted to seize and examine items carried on the person of a suspect, in the name of finding hidden weapons and preventing destruction of evidence.
The underlying question the justices wrestled with was whether the vast amount of private, personal information that a cell phone can contain makes it qualitatively different from, say, a wallet that contains photos, and as such deserves protections under the Fourth Amendment.
Mostly, the justices seemed trying to find a way to split the difference. For instance, one idea was to tie the ability to search cell phones to the seriousness of the crime, thus meeting the concern of Justice Anthony Kennedy that otherwise police could obtain “the tax return of a jaywalker.” Justice Antonin Scalia proposed limiting cell phone searches to information relevant to whatever crime the suspect was arrested for, which seems to us a sounder distinction.
“Smartphones do present difficult problems,” said Justice Samuel A. Alito Jr.
They certainly do, but we don’t think this is one of them. Before smartphones came along, no one rode around in their car with a trunk full of file cabinets containing their banking, tax and medical records, an archive of their personal correspondence, their family photo albums and logs of where they had traveled and who they had telephoned along the way. Thus when they were arrested, say, for a minor vehicle offense, those records remained at home, beyond the reach of warrantless scrutiny by the authorities.
The physical form in which a person’s “papers and effects” are stored does not alter the Fourth Amendment requirement that they not be subject to “unreasonable searches and seizures,” and that a warrant based on a showing of probable cause is required for authorities to search them. Subjecting cell phones to unfettered searches is to authorize precisely the sort of fishing expeditions by authorities that the nation’s founders feared and detested.
Moreover, once the police have seized a suspect’s phone, the justification that it could be used as a weapon (detonating a remote explosive device?) or to destroy evidence loses almost all force. If a suspect is smart enough to be able to erase information from a phone remotely, he is probably too smart to store incriminating data there in the first place. And there are ways to permit phones from being “wiped” remotely. If probable cause exists to search the phone once police have it in their possession, then a court would have an opportunity to issue a warrant in the normal course of events.
The genius of the Constitution is that even as the issues it addresses take on different form, its substance does not. In this case, the individual rights that the Founders sought to guarantee can be plainly discerned, whether inscribed on parchment or transmitted as a text message. We hope the high court will not be distracted by technology from affirming one of the nation’s core liberties.