This is troubling.
The Court has said explictly that it does not yet have a broad enough understanding of new electronic technology to make major pronouncements on the constitutional issues that are arising around it. Last Term, for example, it moved cautiously in evaluating privacy on pagers that government agencies provide to their employees. On Monday, it simply left another new issue to develop in the lower courts when it denied review in Ohio v. Smith (09-1377).A little background:
The 4th Amendment restricts police in their ability to invade people's privacy in order to collect evidence of crime. In the past, this evidence was usually limited to things like contraband (like drugs), murder weapons, and tools used to commit crime. In the late 20th century, the courts interpreted the 4th Amendment as requiring a warrant to tap somebody's phone. A telecommunications revolution has come and gone without any serious revision of these laws.
All private communication must be included in the scope of 4th Amendment protection. The technology changes, but privacy is privacy. In terms of privacy law, there is no substantive difference between a voice call and an email or text. In terms of technology, all three involve transmitting digital information over wires or wirelessly on secured, private lines, through a third party service provider. If you need a warrant to tap a phone call, you need a warrant to intercept an email or text. Police can't open your mail without a warrant; why wouldn't this rule apply to email? And text messages are just tiny emails.
Yet cops now grab a person's cell phone during even minor drug arrests and start rummaging through the old texts, emails and recent calls. They dial speed dial numbers to find out who your friends are and set them up for drug arrests. They compare your call logs with others who have been arrested to try and label you a gang banger. I had a client who was ordered to tell the police her PIN so they could access all of her cell phone data. They threatened to hack into it if she didn't comply. They probably would have!
All communications intended to be private must be protected from unreasonable police searches. I'm not saying prohibit them from ever accessing this data, I'm just saying the warrant requirement applies. What you or I say, through a private channel of any kind, to another person is nobody's business but ours, at least until police can show probable cause why it is the public's business as well.
Anyway, the case the USSC turned away had to do with a cellphone seized "incident to arrest." Most people carry cellphones in a pocket or purse. When the police arrest you, they have the right to conduct a limited search of your clothing and certain containers like wallets and purses, to ensure that you are not armed, and to collect evidence connected with the crime you were just arrested for. If they inadvertently find unrelated contraband or evidence in the process, they can seize that too. This is called the "plain feel" doctrine. The theory of the police in Ohio v Smith, above, was that the cell phone, seized incident to arrest, was a 'container' that they were allowed to 'look inside' of, for more evidence of drug dealing.
If this practice is permitted, the police will abuse the crap out of it. Guys will be pulled over for idiotic traffic violations and arrested instead of being given a ticket. The search incident to arrest will reveal a cell phone, through which the police will search until they find evidence of some kind of drug use. They will then blackmail the suspect with arrest if he doesn't snitch on his friends to their satisfaction. Most of the people harassed in this manner will be non-white. This crap needs to be nipped in the bud. The data on a cell phone ain't going anywhere, so let them seize it and go get a warrant to look inside if they're so sure it's got evidence of criminal activity stored inside.
Getting back to the iPhones of non-criminals, think about how much of your personal life is accessible through your smartphone. Think about your contacts list. Online banking. Communications about your business deals. Communications about your health care, your attorney-client communications, your substance abuse counseling, your sex life. Your browser history, your emails, including the junk mails you deleted. Your physical location can easily be tracked using your cell phone. Your photo collection from Vegas.
If all of this data were in old-timey paper format, the courts would protect it. But nowadays, telecom companies are all too eager to turn over your private data to the police. The argument that sways them usually has to do with the need to stop terrorists. It has long been known that the "sneak and peek" searches and massive telecommunications dragnets authorized under FISA and the PATRIOT Act have been used almost entirely to make drug arrests. We authorized the government to crawl up our butts and monitor all of our communications in order to stop Bin Laden and instead they've used the info to bust our teenagers for weed.
I don't think the telecom companies should be punished for failing to say "how high" when the FBI says "jump." We are all counting on them to keep our secrets except in an emergency.
Am I saying all this just to protect drug dealers? No. The fact is, if we don't protect the 4th Amendment in the context of drug dealers, nobody gets protected. This is how privacy cases almost always come up in court. The protection of your emails to your stockbroker, your doctor, your lover, your political science professor cannot be addressed in court until there is some kind of legal dispute over it. The 4th Amendment regulates government searches, and that usually means police searches, which are connected with arrests, mostly involving bad people. Your right to privacy is forged in the context of a scummy drug dealer because she has the same rights you do.
Extreme cases define everyday rights and the limits of those rights.
The courts need to prohibit the initial disclosure of this information, too, not just its use in court. If the remedy for police misconduct is limited to keeping the police from using the evidence in court against you, then there is nothing to stop them from releasing it to other cops, to prosecutors, to politicians and even the press. I have seen people's DUI tests and book-in photos faxed to their employers by law enforcement. We have to keep private information completely out of police hands except by court order if privacy is to be maintained.
On the whole, the direction of 4th amendment jurisprudence needs to take a turn towards personal privacy protection and away from facilitating law enforcement investigations. The PATRIOT Act set a terrible precedent nationwide. It further enabled cops who already knew how to profile and game the system. As one Supreme Court justice once wrote about the Fourth Amendment:
"Its protection consists in requiring that [the limits of privacy be decided] by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime."So if you want your emails to remain private, if you want your Skype calls to remain private, if you want to keep your browser history to yourself, and if you want your party pictures to remain your business until you decide to show them to someone else, then someone has to fight for the privacy rights of drug dealers.
Next time you meet a criminal defense lawyer at the airport, thank them for their service!