Take Two #123: Cell Phone Sanctity

By Kyra-lin Hom

The law in our country is an odd living thing. We might think of it as a rigid series of rules and codes, but that is not the case. Instead, it is built on precedent. At its core is the precedent established in England. Then of course we have our constitution and now the Bill of Rights. For the most part this works remarkably well and is uniquely flexible compared to most of the rest of the world. However, our jump into the rapidly evolving digital age has no precedent. And our system of law is running in to some problems. For example, let's consider the cell phone.

With the advent of smart phones, most of us have begun to equate our phones with our laptops and tablets. We consider them all to be very private, very personal devices. In fact – and this is especially true of anyone in their twenties and younger – you can often measure the amount of trust between two individuals by how freely they allow each other to handle their respective personal electronic devices.

Next time you ask to borrow someone's phone, pay attention to the response. Most likely either you will automatically posit what you need to borrow the phone for or, if you don't, they will ask. If they approve the use, they will open up that application for you before handing it over. The level of awkward that can occur when someone finds you using a different app is just as bad as getting caught snooping through someone's purse or wallet. It isn't pleasant on either side of the equation.

That's because smartphones have become the modern equivalent to the diary, briefcase, scrapbook, banking folder – all of the above and more. They contain an absurd amount of both casual and deeply personal data. This transition from the basic old flip phone to the smart phone has thrown the law for loop, and we should all be concerned about our legal rights to privacy.

Take the case of Riley v. California that is appealing before the US Supreme Court right now. This is one of those gray area cases generated by our 4th (search and seizure) and 14th (due process of law) Amendments. In this case the defendant was pulled over for driving with expired license registration tags. Prior to impounding a vehicle, police are required to inventory its contents to avoid a future lawsuit. While performing this search, police found two guns and subsequently arrested Riley for illegal possession of firearms. This then allowed the police two search Riley's person incident to arrest whereupon they found a cell phone in his pocket. Later, police went through the contents of the phone (without a warrant) and discovered evidence linking Riley to a gang violence shooting. Ballistic tests matched Riley's guns to the shooting and he was arrested and convicted of “shooting at an occupied vehicle, attempted murder, and assault with a semi-automatic firearm.” Riley is appealing on 4th Amendment grounds.

The question facing the nine Justices is whether or not a smart phone can legally be searched without a warrant when found on or near the suspect at the time of arrest. Is it a personal item like, for example, a cigarette pack or a handful of photos, the incident search of which does have precedent? Or is it a computer requiring a warrant to be searched except under the most pressing of exigent circumstances? To most of us, this is a no brainer. Smart phones are mini computers. But of course the issue isn't that simple when converted to legalese.

However the justices decide (and unfortunately I don't think they'll be siding with common opinion here), it will absolutely affect all of us and the sanctity of our cell phones. We may not be able to do much in the face of the US Supreme Court, but we should at least be aware. Our legal expectations of privacy are not always evolving well with the times.

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