Supreme Court Rules Unanimously: Police Need Warrants to Search Cell Phone Data

[The Brain]

America, fuck yeah!

Canada, not so much...

[crazy canuck]

America, fuck yeah!

Canada, not so much...

It may take the SCC making it even more clear that when they said smartphones are computers they really meant it.

[Barrister]

Not just to protect themselves; also so they can seize any evidence of the crime.

Isn't that what a warrant is for?

You do not require a warrant for every search.   Search incidental to arrest is one of the major situations.

Obtaining a warrant is not easy to do either.  It typically takes several hours of drafting (during which of course the officer is taken away from other duties).

[Barrister]

America, fuck yeah!

Canada, not so much...

It may take the SCC making it even more clear that when they said smartphones are computers they really meant it.

Your confidence about an area of law you don't practice in is amusing.

Now I don't know which way the SCC would ultimately rule.  There is a divergence in the Canadian caselaw.  But all that means is I am smart enough to not offer guarantees about what future court rulings would be.

[The Brain]

Smarter than a phone?

[The Minsky Moment]

Not just to protect themselves; also so they can seize any evidence of the crime.

Don't know about the Canuckistani law here, but in the US under Chimel that statement is too broad.  The artionale is that evidence can be seized to prevent its destruction or spoliation.  Whether the contents of objects seized can be used and admitted into evidence is another question.

[crazy canuck]

America, fuck yeah!

Canada, not so much...

It may take the SCC making it even more clear that when they said smartphones are computers they really meant it.

Your confidence about an area of law you don't practice in is amusing.

Now I don't know which way the SCC would ultimately rule.  There is a divergence in the Canadian caselaw.  But all that means is I am smart enough to not offer guarantees about what future court rulings would be.

And I am smart enough to know that trying to convince a court that they shouldnt follow a SCC ruling by arguing the comments were obiter is often a fools errand unless you can convince the court that the SCC wont rule exactly the same way when this decision goes up on appeal.  Since a majority of judges who decided Vu are still there (and will be for some time) I am not sure why you think they would change their mind on such a fundamental issue.  The Court could not have been more clear that a warrant is required when searching a computer (including a smartphone).   

[Barrister]

The Court could not have been more clear that a warrant is required when searching a computer (including a smartphone).

Except they didn't say that.

What they said was:

The traditional legal framework holds that once police obtain a warrant to search a place for certain things, they do not require specific, prior authorization to search in receptacles such as cupboards and filing cabinets.  The question in this case is whether this framework is appropriate for computer searches. Computers differ in important ways from the receptacles governed by the traditional framework and computer searches give rise to particular privacy concerns that are not sufficiently addressed by that approach.

[The Minsky Moment]

Have not seen the details, but the Aereo ruling was disappointing.

Interesting read.
Basically it reflects a different approach in judicial philosophy, with the majority taking a pragmatic "what did Congress mean" approach and the dissent reading the statute more literally and formalistically.  Not suprisingly the majority is written by Breyer and the dissent by Scalia, who are most associated with those approaches.  What is more interesting is where Roberts falls . . .

[crazy canuck]

The Court could not have been more clear that a warrant is required when searching a computer (including a smartphone).

Except they didn't say that.

Well you will learn something today.  I told you to read the case - not just the headnote.


The case illuminates a number of things you got wrong in this thread.  You will recall that you told Berkut that the amount of information available is not a factor.  It most certainly is according to the SCC.  I will also highlight for you where the SCC expressly said that a warrent is required to search a computer.  The police may take custody of the computer to maintain what evidence there might be but they cannot look at the contents without warrant.  So a process similar to what JR suggested.

[40]                          It is difficult to imagine a more intrusive invasion of privacy than the search of a personal or home computer: Morelli, at para. 105; R. v. Cole, 2012 SCC 53, [2012] 3 S.C.R. 34, at para. 3. Computers are "a multi-faceted instrumentality without precedent in our society": A. D. Gold, "Applying Section 8  in the Digital World: Seizures and Searches", prepared for the 7th Annual Six-Minute Criminal Defence Lawyer (June 9, 2007), at para. 3 (emphasis added).  Consider some of the distinctions between computers and other receptacles.

[41]                          First, computers store immense amounts of information, some of which, in the case of personal computers, will touch the "biographical core of personal information" referred to by this Court in R. v. Plant, [1993] 3 S.C.R. 281, at p. 293.  The scale and variety of this material makes comparison with traditional storage receptacles unrealistic.  We are told that, as of April 2009, the highest capacity commercial hard drives were capable of storing two terabytes of data. A single terabyte can hold roughly 1,000,000 books of 500 pages each, 1,000 hours of video, or 250,000 four-minute songs. Even an 80-gigabyte desktop drive can store the equivalent of 40 million pages of text: L. R. Robinton, "Courting Chaos: Conflicting Guidance from Courts Highlights the Need for Clearer Rules to Govern the Search and Seizure of Digital Evidence" (2010), 12 Yale J.L. & Tech. 311, at pp. 321-22. In light of this massive storage capacity, the Ontario Court of Appeal was surely right to find that there is a significant distinction between the search of a computer and the search of a briefcase found in the same location.  As the court put it, a computer "can be a repository for an almost unlimited universe of information": R. v. Mohamad (2004), 69 O.R. (3d) 481, at para. 43.

[42]                          Second, as the appellant and the intervener the Criminal Lawyers' Association (Ontario) point out, computers contain information that is automatically generated, often unbeknownst to the user.  A computer is, as A. D. Gold put it, a "fastidious record keeper" (para. 6). Word-processing programs will often automatically generate temporary files that permit analysts to reconstruct the development of a file and access information about who created and worked on it.  Similarly, most browsers used to surf the Internet are programmed to automatically retain information about the websites the user has visited in recent weeks and the search terms that were employed to access those websites. Ordinarily, this information can help a user retrace his or her cybernetic steps. In the context of a criminal investigation, however, it can also enable investigators to access intimate details about a user's interests, habits, and identity, drawing on a record that the user created unwittingly: O. S. Kerr, "Searches and Seizures in a Digital World" (2005), 119 Harv. L. Rev. 531, at pp. 542-43. This kind of information has no analogue in the physical world in which other types of receptacles are found.

[43]                          Third, and related to this second point, a computer retains files and data even after users think that they have destroyed them.   Oft-cited American scholar O. S. Kerr explains:

. . . marking a file as "deleted" normally does not actually delete the file; operating systems do not "zero out" the zeros and ones associated with that file when it is marked for deletion. Rather, most operating systems merely go to the Master File Table and mark that particular file's clusters available for future use by other files. If the operating system does not reuse that cluster for another file by the time the computer is analyzed, the file marked for deletion will remain undisturbed. Even if another file is assigned to that cluster, a tremendous amount of data often can be recovered from the hard drive's "slack space," space within a cluster left temporarily unused. It can be accessed by an analyst just like any other file. [p. 542]

Computers thus compromise the ability of users to control the information that is available about them in two ways: they create information without the users' knowledge and they retain information that users have tried to erase. These features make computers fundamentally different from the receptacles that search and seizure law has had to respond to in the past.

[44]                          Fourth, limiting the location of a search to "a building, receptacle or place" (s. 487(1) of the Code) is not a meaningful limitation with respect to computer searches. As I have discussed earlier, search warrants authorize the search for and seizure of things in "a building, receptacle or place" and "permit the search of receptacles such as filing cabinets, within that place . . . . The physical presence of the receptacle upon the premises permits the search": Fontana and Keeshan, at p. 1181 (italics in original; underlining added). Ordinarily, then, police will not have access to items that are not physically present in the building, receptacle or place for which a search has been authorized. While documents accessible in a filing cabinet are always at the same location as the filing cabinet, the same is not true of information that can be accessed through a computer.  The intervener the Canadian Civil Liberties Association notes that, when connected to the Internet, computers serve as portals to an almost infinite amount of information that is shared between different users and is stored almost anywhere in the world. Similarly, a computer that is connected to a network will allow police to access information on other devices. Thus, a search of a computer connected to the Internet or a network gives access to information and documents that are not in any meaningful sense at the location for which the search is authorized.

[45]                          These numerous and striking differences between computers and traditional "receptacles" call for distinctive treatment under s. 8  of the Charter . The animating assumption of the traditional rule — that if the search of a place is justified, so is the search of receptacles found within it — simply cannot apply with respect to computer searches. 

                    (ii)   Prior Authorization Is Required

[46]                          Prior authorization of searches is a cornerstone of our search and seizure law.  As the Court affirmed in Hunter, the purpose of s. 8  is "to protect individuals from unjustified state intrusions upon their privacy. That purpose requires a means of preventing unjustified searches before they happen . . . . This, in my view, can only be accomplished by a system of prior authorization" (p. 160 (emphasis in original)). Dickson J. went on in Hunter to say that the requirement of prior authorization "puts the onus on the state to demonstrate the superiority of its interest to that of the individual" (ibid.). The purpose of the prior authorization process is thus to balance the privacy interest of the individual against the interest of the state in investigating criminal activity before the state intrusion occurs.

[47]                          I have found that privacy interests in computers are different — markedly so — from privacy interests in other receptacles that are typically found in a place for which a search may be authorized.  For this reason, I do not accept that a justice who has considered the privacy interests arising from the search of a place should be assumed to have properly considered the particular interests that could be compromised by a computer search. The distinctive privacy concerns that are at stake when a computer is searched must be considered in light of the purposes of s. 8  of the Charter . This calls for a specific assessment of "whether in a particular situation the public's interest in being left alone by government must give way to the government's interest in intruding on the individual's privacy in order to advance its goals, notably those of law enforcement": Hunter, at pp. 159-60.  That is the threshold demanded by s. 8  of the Charter . Only a specific authorization to search a computer found in the place of search ensures that the authorizing justice has considered the full range of the distinctive privacy concerns raised by computer searches and, having done so, has decided that this threshold has been reached in the circumstances of a particular proposed search.

[48]                          Specific, prior authorization means, in practical terms, that if police intend to search any computers found within a place they want to search, they must first satisfy the authorizing justice that they have reasonable grounds to believe that any computers they discover will contain the things they are looking for. They need not, however, establish that they have reasonable grounds to believe that computers will be found in the place, although they clearly should disclose this if it is the case. I would add here that once a warrant to search computers is obtained, police have the benefit of s. 487(2.1) and (2.2) of the Code, which allows them to search, reproduce, and print data that they find. 

[49]                          If police come across a computer in the course of a search and their warrant does not provide specific authorization to search computers, they may seize the computer (assuming it may reasonably be thought to contain the sort of things that the warrant authorizes to be seized), and do what is necessary to ensure the integrity of the data. If they wish to search the data, however, they must obtain a separate warrant.

[dps]

You mean like the difference between your bank account PIN in your cell phone, as opposed to it written on the back of a business card in your wallet?

Let's not fall for the idolatry of technology when it comes to very basic premises of a person's right to privacy at the time of arrest.  These are not monumental, paradigm-changig legal differences here.

Besides, there's no obligation for you to carry around your personal data everywhere you go in a cell phone.

What does there not being an obligation for me to carry around my personal data have to do with my right to not have the police search my personal data without a good reason?

My rights are not defined or limited by what I am or am not "obligated" to carry around.

The police could get my PIN from my black book, if I wrote it down there, but they couldn't actually access my account - they certainly could if they downloaded data from my smartphone.

And you are completely wrong - these are in fact, monumental changes here. The difference between the police being able to see what three pictures I can carry around in my wallet and everysingle picture I may have ever taken is most certainly a monumental difference. The amount of data a person can reasonably expect to carry on their person without a smart phone is some minuscule fraction of what data is available if the state is allowed to grab anything they can reach from my smartphone, which is essentially every piece of data about my entire life, and that will only continue to grow.

I tend to agree with Berkut on this.  Before I had a cell phone, I didn't carry my address book around with me--it stayed at home, where my phone was.  There were a relatively few people that I might have called had I needed to make an emergency call from a phone booth, but I didn't need to have those numbers written down on a paper somewhere on my person, because they were numbers I knew without having to look up.

Now that I have a cell phone, of course I have all of my contact info stored in it, and I carry it around with me most anywhere.  If I wasn't going to do that, why would I even bother having a cell phone--I'd just stick with a land line at home.

[jimmy olsen]

This is likely to have broader repercussions

http://www.washingtonpost.com/business/technology/supreme-court-cellphone-ruling-hints-at-broader-curbs-on-surveillance/2014/06/25/2732b532-fc9b-11e3-8176-f2c941cf35f1_story.html

Supreme Court cellphone ruling hints at broader curbs on surveillance

In a strong defense of digital age privacy, a unanimous Supreme Court ruled Wednesday that police may not generally search the cellphones of people they arrest without first getting search warrants. (  / AP)
By Craig Timberg June 25 at 7:56 PM

The words "National Security Agency" appear nowhere in the Supreme Court's opinion Wednesday prohibiting cellphone searches without a warrant. But the unanimous ruling makes clear that the nation's most important jurists are tuned in to the roiling debate about high-tech surveillance and concerned about government officials going too far.

In broad, passionate language — spiked with the occasional joke — the ruling by Chief Justice John G. Roberts Jr. asserts that the vast troves of information police can find in modern cellphones are no less worthy of constitutional protection than the private papers that Founding Fathers once kept locked in wooden file cabinets inside their homes.

Roberts even chides the government for arguing that searching a cellphone is "materially indistinguishable" from searches of other items that can be seized at the scene of an arrest, such as a pack of cigarettes or a handwritten note. "That is like saying a ride on horseback is materially indistinguishable from a flight to the moon. Both are ways of getting from point A to point B, but little else justifies lumping them together," he wrote.

Such declarations, experts said, suggest a willingness to reconsider legal rulings long used to justify modern surveillance tools. That includes some spying technologies that were unimaginable when courts first articulated those arguments but that now are routinely used by a range of government agencies, including the NSA, the FBI and many state and local police forces.

A footnote in Wednesday's ruling cautions against assuming too much about the court's views on data collection "under other circumstances." But legal experts on both sides of the privacy debate took notice of the unanimity of the ruling and the uncommonly strong language Roberts used when describing the privacy risks in modern technologies.

"It's just a big, forceful, bold decision," said Orin S. Kerr, a George Washington University law professor and former Justice Department lawyer specializing in technology issues. "If you're at the [American Civil Liberties Union], you're popping a champagne bottle. If you're at the FBI, you're scratching your head and thinking of what you're going to do next."

Many observers date the Supreme Court's reconsideration of high-tech surveillance to the United States v. Jones decision in 2012, which ruled that police had trespassed when placing an electronic tracking device on a suspect's car. In applying a traditional constitutional protection to new technology, the court expressed concerns about the need to update the Fourth Amendment for the modern world.

The ruling on cellphone searches, experts said, suggested that the court's consensus has grown on such issues over the past two years, a period in which the revelations made by former NSA contractor Edward Snowden have sparked international controversy over the privacy implications of high-tech government spying.

The Supreme Court ruling, said former NSA general counsel Stewart A. Baker, "shows that the judges have the same technology panic that the rest of us do."

Baker, now a partner at a private law firm, added, "That means that in other areas they also will be alive to that risk and open to arguments that the rules should be changed."

Privacy advocates are likely to cite the ruling in seeking to limit the ability of the government to conduct searches in border areas, where constitutional standards typically are lower. Even the "third-party doctrine," which says that users have no reasonable expectation of privacy when they share information with a company or other third party, could be put in peril.

In Wednesday's ruling, Roberts notes that cellphones aren't exclusively — or even mainly — devices for talking, given their ability to also shoot video, browse the Web, send and receive e-mail, store gigabytes of information and access even more of it through remote "cloud" services. He even makes a quip about how frequently people gaze at or touch the devices, saying that they are "such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy."

The legal consequences of the ruling stand to go far beyond cellphones and into the increasingly broad array of devices that carry or can access personal information through digital means — computers, cars, e-readers, wearable devices such as Google Glass and even some newer appliances that track usage and can be accessed remotely over the Internet.

More than anything, legal experts said, the ruling offers a reminder that Supreme Court justices live in the real world and almost certainly use cellphones in ways that make them aware of their privacy risks.

"These are highly intelligent individuals who are engaged in the world around them," said Brian Owsley, a former magistrate judge from Texas who repeatedly wrestled with technology and privacy issues during his years on the bench. "Any time you get nine people on the Supreme Court saying something in one direction, that's pretty impressive. . . . They're all clearly taking a stand for the Fourth Amendment in light of privacy concerns."

[Ideologue]

I stand firmly with Seedy.  What a dumb decision.

Yeah how idiotic that the Constitution should impact law enforcement.  It is not like it is relevant to our legal system in anyway.

The 4th Amendment sucks.

[Ideologue]

This is, again, where I point out how some people have no actual practical care at all for the concept of "liberty" when it comes to any actual application of the idea in real life. It is just pure lip service.

Had the same argument with a pal at work today.  He quoted Ben Franklin and I said I didn't agree with the premise.  Just because something is pithy doesn't make it true.

Explain to me how anyone is harmed by searching a smartphone (or, for that matter, a wiretap or video surveillance).  (I'm kidding, you can't explain it to my satisfaction and I won't convince you either.  But I do trust you have sounder reasons than "the cop will use my debit card.")

[jimmy olsen]

We know you're a totalitarian monster, and one of the rare few who admits it and is proud of it. You don't have to remind us every day.