Is privacy dead? If so, someone forgot to tell the Supreme Court. In a ringing unanimous decision Wednesday, the justices said that when police arrest a suspect, they don't have the right to access the data in his cellphone without a search warrant. It's a critical victory for the right of citizens to shield their most private information from government scrutiny.
The verdict was not a foregone conclusion. In recent years, the court has carved out various exceptions to the customary Fourth Amendment requirement that police obtain a warrant before conducting a search. During oral arguments in April, Justice Antonin Scalia suggested that cellphones taken from arrested suspects deserve no special protection. "Our rule has been that if you carry it on your person, you ought to know it is subject to seizure and examination," he said.
But he and his colleagues ultimately rejected the argument that cellphones are indistinguishable from other personal items the cops might examine. "That is like saying a ride on horseback is materially indistinguishable from a flight to the moon," wrote Chief Justice John Roberts. "Modern cellphones, as a category, implicate privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet or a purse."
His point is beyond dispute. Smartphones may carry a digital record not just of calls made but of medical concerns, political preferences, romantic involvements, music tastes, sexual predilections, financial resources, travels and more. They could also provide evidence of crimes committed.
Once an arrest occurs, the suspect certainly has lesser privacy rights than before. Police routinely relieve arrestees of personal effects to make sure they have no contraband or weapons. This type of search is a minimal intrusion for an unassailable purpose.
But even after being taken in, a suspect retains some rights. Cops normally may not ransack a suspect's house without a warrant. And as the court noted, "a cellphone search would typically expose to the government far more than the most exhaustive search of a house."
In recent years, the court has been consistently sympathetic to the purported needs of law enforcement agencies. In this instance, though, it felt it had no choice but to impose a limit.
"We cannot deny that our decision today will have an impact on the ability of law enforcement to combat crime," wrote the chief justice. "Privacy comes at a cost."
In fact, the cost is low. The burden on cops is one they handle on a regular basis without much trouble. Said the court: "Our answer to the question of what police must do before searching a cellphone seized incident to arrest is accordingly simple - get a warrant." If they have good reasons to think they'll find evidence of a crime, a judge should be willing to grant it promptly.
A court blind or indifferent to the ways in which technological change can erode traditional freedoms would have ruled differently. This decision does a lot to ensure that privacy can coexist with progress.