April 29 (Bloomberg) -- U.S. Supreme Court justices struggled to define the reach of privacy in the digital age, as they considered whether police officers must get a warrant before searching the mobile phone of someone they arrest.
In a two-hour argument that touched on Fitbits, Facebook and emerging encryption technology, justices across the ideological spectrum suggested they weren’t prepared to give police unfettered power to search a person’s phone.
“People carry their entire lives on a cellphone,” Justice Elena Kagan said.
At the same time, members of the court voiced concern that placing mobile devices completely off limits might put officers at risk and allow destruction of the information on the phone. Criminals are “more dangerous, more sophisticated and more elusive with cellphones,” Justice Anthony Kennedy said.
More than 90 percent of American adults own mobile phones, giving the two cases considered by the court today broad practical significance. The disputes are part of a wider debate over electronic privacy that ultimately may produce a Supreme Court showdown over the National Security Agency’s telephone-data surveillance program.
Today’s cases, which the court will resolve by July, test the Constitution’s Fourth Amendment and its ban on unreasonable searches. One of the cases involves an old-style “flip” phone with limited data capacity, while the other concerns a newer smartphone.
The smartphone case stems from David Leon Riley’s 2009 arrest in San Diego for carrying concealed and loaded weapons under his car’s hood. Police took Riley’s Samsung Instinct M800 smartphone, searching it at the scene and later at the station.
Officers found photos and videos suggesting that Riley was a member of a gang, as well as a photo of him and another person in front of a car that police suspected had been involved in a shooting. The information eventually helped prosecutors win a conviction of Riley on shooting-related charges, including attempted murder.
Riley was sentenced to 15 years to life in prison, and a California state appeals court upheld the conviction.
Riley’s lawyer, Jeffrey Fisher, urged the court to impose a “categorical rule,” generally requiring a warrant.
Chief Justice John Roberts asked whether Fisher’s approach would shield even material that a person has already made public, like a Facebook or Twitter account accessible through the phone.
“Any privacy interest in a Facebook account is at least diminished because the point is you want these things to be public and seen widely,” the chief justice said.
Roberts later asked whether police could examine a Fitbit, which records how many steps a wearer has taken. Fisher said he would shield that device as well.
California Solicitor General Edward DuMont, defending the conviction, pointed to Supreme Court cases that say officers may seize and inspect any item found on someone being arrested. Several justices questioned how Fisher’s contentions could be squared with that line of cases.
“What is the difference between looking at hard-copy photos in a billfold and looking at photos that are saved in the memory of a cellphone?” Justice Samuel Alito asked.
DuMont’s arguments met resistance. Justice Antonin Scalia, who often votes with the court’s liberal wing to limit police authority in search cases, questioned whether officers should have full access to the phone of a person stopped for not wearing a seatbelt.
“It seems absurd that you should be able to search that person’s iPhone,” Scalia said.
Justice Anthony Kennedy asked whether the court could distinguish between serious and nonserious offenses, giving police more power with the former. He acknowledged that past cases didn’t offer any precedent for his approach.
Deputy U.S. Solicitor General Michael Dreeben told the justices that accomplices might be able to wipe the data off an arrested person’s phone from a remote location. And he said new technology can automatically encrypt data when a phone shuts off, making it impossible for police ever to get access to it.
“It may be months or years or never if they can break through the encryption and actually obtain the evidence,” he said.
At times, the justices indicated they yearned for simple solutions to the vexing technological problems in the case. Justice Sonia Sotomayor asked whether police could protect a phone’s data by putting it in “airplane mode” until a judge issued a warrant.
In the flip-phone case, the Obama administration is seeking to reinstate the conviction of Brima Wurie, who was arrested in 2007 in Boston for allegedly selling drugs.
At the police station, officers saw that Wurie’s phone was repeatedly receiving calls from a number identified on the caller-ID screen as “my house.” An officer opened the phone, checked the call log and found the number for the house.
Police then used that number to get Wurie’s address. Officers eventually found crack cocaine, marijuana and a firearm in his apartment. A jury convicted Wurie on drug and weapons charges, and he was sentenced to more than 21 years in prison.
A federal appeals court overturned the conviction, saying police had violated Wurie’s constitutional rights.
The justices hinted that Wurie’s case itself might be an easy one, given the limited information police obtained from his phone. Alito said the phone company would have Wurie’s call log, and Roberts suggested officers wouldn’t have much trouble determining where he lived.
“That’s on your driver’s license, isn’t it?” Roberts asked Judith Mizner, a federal public defender representing Wurie.
At other points, Roberts indicated he shared the concern about the potential implications of the cases. He questioned Dreeben’s suggestion that the court might be able to limit police to evidence connected to the suspected crime.
“The police would be able to articulate why almost every application, every entry on a cellphone would reasonably be anticipated to have evidence of a particular crime,” he said.
The cases are Riley v. California, 13-132, and United States v. Wurie, 13-212.
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