Sunday, January 23, 2011

Smartphone Alert: Watch for Prying Eyes of Police

      Smartphone users, beware. All that personal information stored in the device’s innards is open to the prying eyes of the police if you happen to be arrested, in some jurisdictions for nothing more serious than a traffic violation.
      That’s the upshot of a decision by the California Supreme Court this month [Jan. 3], rejecting a drug defendant’s argument that police needed a warrant to search the cell phone taken from him at the time of his arrest. The ruling, at odds with an Ohio Supreme Court decision in a similar case, turns a blind eye to the privacy implications of allowing police to rummage through modern-day electronic gadgets without the protections the Framers put into the Fourth Amendment.
      The ruling stems from the arrest of Gregory Diaz by Ventura County sheriff’s deputies on April 25, 2007, after they monitored a police informant’s drug buy in a car driven by Diaz. At the station house, Diaz denied any knowledge of his passenger’s transaction with the supposed drug customer.
      Deputy Victor Fazio left the interrogation room and began poking around Diaz’s cell phone. There, he found a four-character text sent earlier in the day: “6 4 80.” Based on his experience, Fazio interpreted the message to mean “six tabs of Ecstasy for $80.”
      Confronted with the evidence, Diaz admitted his role in the drug deal. At trial, Diaz moved to suppress the evidence of the message and his later statement on the ground that Fazio’s search of the cell phone violated the Fourth Amendment’s warrant requirement. When the judge denied the motion, Diaz pleaded guilty. He was sentenced to probation, but continued to challenge the search on appeal.
      In its 5-2 decision upholding the search, the California Supreme Court mechanically applied precedents from the U.S. Supreme Court that permit a warrantless search of an arrestee’s person and the area within his immediate control. In the leading case, for example, police were held to have acted lawfully in taking a cigarette pack from a suspect’s pocket and searching it to find heroin capsules inside (United States v. Robinson, 1973).
      Writing for the majority in People v. Diaz, Justice Ming Chin acknowledged that a later case blocks police from searching items found outside the arrestee’s control — for example, a foot locker found in the trunk of the suspect’s car (United States v. Chadwick, 1977). But Chin saw only difficult judicial line-drawing ahead to evaluate the need for a warrant on “the character” of the item being searched instead of the location where it was found.
      The dissenting justices recognized the privacy implications of the ruling. “Never before has it been possible to carry so much personal or business information in one’s pocket or purse,” Justice Kathryn Mickle Werdegar wrote. “The potential impairment to privacy if arrestees’ mobile phones and handheld computers are treated like clothing or cigarette packages, fully searchable without probable cause or a warrant, is correspondingly great.”
      Any smartphone owner will readily agree. Two smartphone owners cannot get together without quickly showing off all the cool things they can do with their new gadget. The schedule app shows where you’ve been and where you’re going. The picture app shows who you’ve been with and when. The banking app shows your financial history along with all your bills. The e-trade app shows your investments.
      One does not have to be a drug dealer to think that the police ought not have free rein to delve through all that information unless they meet the safeguards established in the Fourth Amendment against general searches. The risk to privacy is underscored by the fact that, under an earlier Supreme Court decision, police can take someone into custody for even a minor traffic offense (Atwater v. Lago Vista, 2001).
      The Ohio Supreme Court showed greater respect for personal privacy in a 4-3 decision in 2009 to require a warrant before a cell phone search. A cell phone’s “ability to store large amounts of private data gives their users a reasonable and justifiable expectation of a higher level of privacy in the information they contain,” the court ruled in State v. Smith.
      The few federal court rulings on the issue are in conflict, with three out of four agreeing with the California court that no warrant is needed for a cell phone search. As smartphones become more and more common, the issue cries out for resolution by the Supreme Court. There, the majority’s customary pro-law enforcement orientation might be offset by other concerns. Justice Anthony M. Kennedy has shown sensitivity to privacy issues in other cases. And conservatives Antonin Scalia and Clarence Thomas provided critical votes in the 5-4 decision in 2001 requiring a warrant to use “thermal imaging” to search a home suspected of housing an indoor marijuana garden (Kyllo v. United States.)
      Back in the early 20th century, the Supreme Court found no need for a warrant for police to listen in on private telephone conversations (Olmstead v. United States, 1928). A court more attuned to privacy and technology ruled the other way in 1967 (Katz v. United States). Few people today would favor warrantless bugging of phone conversations. Future generations may view it as equally self-evident that the personal information stored on ubiquitous smartphones is equally worthy of constitutional protection.

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