05/01/2014 05:57 pm ET Updated Jul 01, 2014

Smartphones and Befuddled Justices

It's likely that the Framers of the Bill of Rights, especially the Fourth Amendment's "right to be secure against unreasonable searches and seizures," may have referred to tablets, clouds, applications, laps and tops, and it's also possible that James Madison once called John Adams a "Twit," even a "Twitter." But it's pretty certain that the Framers never used these terms the way they were used on Tuesday in the Supreme Court during the oral argument on whether the police need a warrant to search the cell phone of a person who has just been arrested.

The cases -- Riley v. California and United States v. Wurie -- probably will become instant landmarks. They present the Court with its first opportunity to decide how much privacy protection the Constitution gives to digital information, and whether the Court's rulings involving searches in the pre-digital world should govern the analysis for searches in the post-digital world.

United States v. Robinson, decided over 40 years ago, is the leading case on the authority of police to conduct a search contemporaneous with making an arrest. The defendant was arrested for unlicensed operation of a car, and searched pursuant to the "full custody" arrest. A crumpled cigarette package was discovered in his pocket, and a search of the package revealed heroin. Was it reasonable for the police to search the package? Yes, the Court ruled, in order to remove any weapons that the arrested person might use to resist the arrest and effect his escape, and also to seize any evidence on the arrestee's person to prevent its concealment or destruction.

The argument in the Court exposed fault lines and confusion over the relevance of Robinson to digital searches, whether of a smartphone, computer, laptop, iPad, tablet, Fidbit and Facebook. Several of the Justices were uncertain whether Robinson applied, and if it did, how to apply the precedent, given that it concerned a search for physical evidence, not a search for digital evidence. As the lawyer for the petitioners pointed out, physical items such as the cigarette pack on Robinson clearly may present a safety threat -- it may contain a razor blade or a sharp pin -- and physical evidence may be destroyed -- the defendant could have swallowed the drugs in the pack. But it was difficult for some of the Justices to imagine how digital evidence presents an immediate safety threat. Moreover, once the phone or computer is in the possession of the police, can the content be destroyed?

Chief Justice Roberts focused on Robinson's search rationale for protecting the officer's safety. He wondered whether there existed a safety concern for searching the cell phone, namely, a concern that the phone could explode, or trigger the detonation of an external exploding device. The government attorney conceded that once the phone is in the possession of the police, there would be no danger to the officer's safety from the phone. Justice Alito, observing that "smartphones do present difficult problems," had difficulty identifying a principle to distinguish a search of physical evidence such as a billfold, and examining the few photos in the billfold, with a seizure of a smartphone, and examining the potentially thousands of photos saved in the phone. Some of the Justices wondered whether a line should be drawn that would allow a search of the phone based on the seriousness of the crime for which the defendant has been arrested. But the Court in its search and seizure jurisprudence has never drawn such a line. Or should a rule be formulated that would allow a search of the phone when the potential evidence on the phone is reasonably connected to the crime for which the person is arrested? The Court previously has formulated such a rule, but in the context of searches of automobiles.

There seemed to be a consensus among the Justices that the world of the Framers has changed dramatically, and that the critical feature distinguishing physical evidence and digital evidence, as several of the Justices noted repeatedly, is the vast amount of information contained in the digital database. Although the government attorney denied that the expansion of the volume of the search increases the invasion of a person's privacy -- "the digital format should not make a difference" -- several of the Justices appeared skeptical. To Justice Kagan, it makes a huge difference. She noted that a search of a cell phone can reveal almost every detail of a person's life -- emails the person has written, even the most intimate, all of a person's bank records, all of a person's medical data, calendars, and places the person has visited. "That strikes me as a very different kind of world than the kind of world that you were describing." Chief Justice Roberts noted that a cell phone has "got the person's whole life."

Justice Sotomayor said that the cell phone contains "potentially thousands of photos" that "spans a person's entire life." Although the government rejected a test that the nature of the crime for which a person is arrested should determine the permissibility of a search, Justice Kagan asked whether the police should be able to examine a person's cell phone after he is arrested for driving without a seatbelt, and by such a search for such a minimal offense conceivably learn everything about a person's "entire life."

Other concerns surfaced during the argument, and produced more uncertainty from the Court. For example, does the government have the authority to do more than just download and examine the information on the cell phone? May the government also retain the information by storing it in an ever-growing database? Does the principle sought by the government apply to other digital repositories such as computers, iPads, tablets and Fitbits? Should there be a uniform rule -- one size fits all?

The overriding question that lurked throughout the argument was not whether the government could examine the materials contained on the phone -- the broad rules of the Fourth Amendment make it pretty clear that once the police lawfully have gained control of the phone, the police eventually would be able to inspect the contents stored in the phone. The big question was whether the police need a warrant to examine the contents. As Justice Ginsburg pointed out, if the government can seize the phone and secure it, why is it so difficult to go to a magistrate for permission to search it? And thereby give the magistrate the authority to delineate what items can be examined, and what items may not be examined. "What is the reason," she asked the government lawyer, "for cutting out the magistrate?" A practical reason, according to the government attorney, was the possibility that even if the phone is secured, there is "no guarantee" that the arrestee would not be able to remotely wipe out the data, and also employ encryption technology to lock the phone and make it almost impossible to get into. However, the attorney was not able to identify any cases that presented such a possibility, although he noted the existence of new technologies such as "Faraday boxes" that might be able to disconnect the network, which prompted Justice Breyer to note that the Court should not be making constitutional decisions for the search of cell phones "because there might be a technology that hasn't yet in fact been used."

The Supreme Court is now poised to decide the very difficult question of how the Constitution balances the tension between individual privacy in digital technology and the government's need to investigate crimes by searches and seizures. Unless there are exigent circumstances necessitating an immediate search, my guess is that the Court will strike the balance in favor of requiring a warrant for the search.