Co-authored by Dr. Stephen Bryen, Chairman & CTO, Ziklag Systems
The Supreme Court decision on cellphones, Riley v. California, may seem like an open-and-shut case because the Court unanimously found that when a person is arrested a cellphone may not be searched without a warrant.
But the seemingly unanimous decision may have more fissures and cracks than most people think, and it is far from certain that in the long run that the touted "victory" for privacy will, in fact, be sustained either by the Court itself or by Congress and state legislatures.
The essence of Riley v. California, and a companion case, U.S. v. Brima Wurie, is that an arresting officer or officers cannot search a person's cellular phone without obtaining a warrant. Riley was stopped by a police officer driving with expired number tags. When stopped the officer found that Riley also had a suspended driver's license. The car was impounded and searched and guns were found hidden under the car's hood. A search of the cell phone turned up a connection between Riley and a street gang and photographs of Riley standing in front of a car that was involved in a shooting a few weeks earlier. Riley was charged, among other things with attempted murder and was convicted with a 15 years to life sentence. His appeal was based on the fact that the search of his cell phone violated his Fourth Amendment rights.
Wurie was picked up in a routine surveillance where the arresting officer thought that a drug sale was taking place. Wurie had two cell phones that were searched and this led to a location and photos. The search of the location, an apartment, yielded crack cocaine, weapons and drug paraphernalia. Wurie was convicted of distributing drugs. The search of the apartment was covered by an appropriate warrant. Wurie got 262 months in prison but appealed that the information improperly taken from his cell phones should have been suppressed.
The Court needed to consider whether, in fact, the Constitutional rights of the two litigants were violated. In the Riley case, the decision by the Supreme Court probably frees Riley from a 15 year to life sentence. In the case of Wurie, he could not be convicted of selling drugs because of lack of proof and would need to be released.
It follows, therefore, that the Supreme Court decision in these two cases has a profound impact on law enforcement, and even though the Court reached a unanimous decision, there are a host of problems embedded in the decision, including the danger to society of releasing criminals from jail.
The Court did not say that cellphones cannot be searched. What the Court said is that you need a warrant, in most (but not all) cases before a phone can be searched.
Warrants are issued based on probable cause. The arresting officer or his superiors needs to convince a judge to issue a warrant. Warrant requests are rarely denied, although a judge may try and narrow the scope of the warrant in certain ways or ask questions before a warrant is issued. In a Texas case last year Federal Magistrate Judge Stephen Smith in Houston denied a request by the FBI to remotely hack a computer by planting spy software on it. His action did not completely block the FBI, but it created legal a problem because the Judge wanted to know how to supervise the collecting of information obtained in this way to make sure it was pertinent to a case said to involve alleged bank fraud and identity theft. Among other things the FBI wanted to remotely control the computer's webcam.
The Supreme Court, in its unanimous decision, also recognized that there were circumstances when a warrant might not be needed at all when a phone was seized. For example, the Court noted that if there could be information on a phone that would warn officers of impending danger from associates of the person arrested, the phone could be searched. This "concession" is a mess for law enforcement. If they search a phone without a warrant feeling there is an impending danger and find nothing, are they guilty of an illegal search? What is to be done with evidence they may find of criminal activity, but not anything threatening of law enforcement officers? What if the threat was to the public -- e.g., a terrorist attack or other plot against either individuals or groups or sensitive locations? Must the officers abandon this information? And finally, if they find evidence of criminal activity but not of impending threat to the officers, have they conducted an illegal search and must they abandon any prosecution based on such evidence?
In respect to certain categories of crime -- murder, terrorism, kidnapping, rape -- the Court needs to revisit its decision. When serious threats are involved, law enforcement should not have to wait for a warrant. This, it seems, is what Justice Samuel Alito was trying to get at in partially concurring with the other Supreme Court Justices in deciding these cases. There is little doubt that Justice Alito was uncomfortable and he urged (State) legislatures to enact legislation that draws reasonable distinctions "based on categories of information or perhaps other variables" because, as he says, cell phones pose "new and difficult enforcement problems." Justice Alito warns against "using the blunt instrument of the Fourth Amendment" in deciding these matters and points out that the Supreme Court "is poorly positioned to understand and evaluate" these matters.
Justice Alito, unfortunately, did not follow through his logic and reach suitable conclusions that properly protect our society. In fact, one can argue that the unanimous decision of the Supreme Court may create immense risks by creating confusion within law enforcement and in the courts which undermines civil protection and homeland security.
The truth is that the Supreme Court's decision in these cases leads to less safety for citizens, even though its intent was to protect privacy. The Courts need to recognize that there is a difference between privacy and criminality, and the level and type of threat needs to be part of any Court decision. At the end of the day, these Supreme Court decisions, universally hailed as a good thing, are probably the reverse.