Keeping Cell Phones Private

If the police have a good reason to search a phone, then they can get a warrant.

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If engaging in political protest means giving the police license to rifle through your personal communications, then Americans would almost certainly think twice before expressing their views in the streets. Although a warrant is normally required to search our homes, offices and personal effects, the police in many states can search an arrestee's cell phone without a warrant. It's time our courts and state legislatures put an end to this abusive practice. Our rights to privacy, free speech and association are all at stake.

Our mobile devices today hold as much information as our home and office computers. They contain our emails, text messages, social media accounts and information about our health and finances. They also contain detailed information about the people we communicate with. No court would ever tolerate the warrantless search of a home office; and while any analogy between a cellphone and a home office certainly rings true, our mobile devices now potentially contain warehouses worth of information about us.

[Read Ron Cottingham: Fighting Crime, One Cell Phone at a Time]

The Fourth Amendment was the product of the American revolutionary's hatred of the "general warrants" used by the British to search where and when they pleased. But warrantless cellphone searches are exactly the kind of exploratory intrusions and general rummaging that the Fourth Amendment was meant to prohibit.

Concerns about abuse are not abstract. Take the example of Bob Offer-Westort, a civil rights activist who erected a tent in a San Francisco park to protest a proposed law targeting the homeless. After he was arrested for his act of peaceful civil disobedience, officers combed through his text messages, including private comments he exchanged with a friend about a local politician.

Offer-Westort's unfortunate experience illustrates the many reasons why warrantless cellphone searches are so problematic. In addition to invading the privacy of a cellphone's owner, they invade the privacy of everyone that person communicates with. When the officer searched that phone, he gained access to the political views of Offer-Westort and other civil rights activists who hadn't even been arrested. Our constitutional guarantees prevent the government from forcing us to disclose who we associate with and what we say to them.

[See a collection of editorial cartoons on the NSA.]

The police argue that warrantless cellphone searches are necessary to protect officer safety or to prevent the destruction of evidence. But Offer-Westort was handcuffed when the police searched his phone; he clearly posed no threat and lacked the ability to destroy any evidence on the phone. The search of his device served no legitimate law enforcement need.

A warrant is a time-tested method for balancing privacy and public safety. If the police have a good reason to search a phone, then they can get a warrant. If there is a true emergency, then they can search the phone without a warrant under the "exigent circumstances" doctrine.

Although the majority of early court decisions concluded that the police need not get a warrant, the tide is beginning to turn. In two important recent decisions, the Florida Supreme Court and the United States Court of Appeals for the First Circuit refused to allow the police to search an arrestee's cellphone without a warrant. These decisions recognize our current technological reality – cellphones are a window into our lives. The police can't peer into our homes without a warrant. They should also get a warrant to search our phones.

Linda Lye is an attorney at the American Civil Liberties Union of Northern California.