Constitution Daily

Smart conversation from the National Constitution Center

Cellphones, privacy and the Constitution

September 15, 2011 by Lyle Denniston


It is a cultural fact of life in 2011 that the cellphone, and its more sophisticated technological cousin, the smartphone, is rapidly approaching the status of the ordinary: almost everyone seems to have  access to one or the other, and the user depends upon it to keep in touch, literally, with the whole world.  The handheld phone has even become the instrument for chronicling the pace and success of revolutions, even in otherwise closed societies.

Creative Commons flickr image from compujeramey

And yet, no one can say for sure just where such devices stand in the legal world.  And that is nowhere more true than in America, where the constitutional stature of such personal data devices is still in its earliest beginning stage of definition.  The most pressing issue: Just how private are the contents – often very intimate in nature – of those devices?  When can government scan those contents without permission?

Just last year, the Supreme Court gave one explanation for this lack of legal certainty so far.   “The judiciary,” the Court commented in a significant test case, ”risks error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society has become clear.”  Cautiously, therefore, the Court refused to answer the most basic constitutional question about privacy: What degree of privacy is society prepared to insist upon for such devices?  (In legal phrasing, how does one define “a legitimate expectation of privacy?”)

Teacher's corner

The issue of cell phone searches is something schools have also been addressing. Use the National Constitution Center's Exchange lesson plan found here to discuss with students how schools balance security measures with privacy. Part of the lesson has students investigating the the federal case of J.W. v. Desoto Country School District (2010) in which a school suspended a student after searching the contents of his cell phone.

The Court, in that decision (City of Ontario v. Quon), wound up with a ruling that a police officer has no Fourth Amendment right of privacy in the contents of an electronic pager supplied by the police department for official use.

Because those who work for the government may have to give up some of their privacy rights, the development of the legal concept is often more important when an ordinary citizen’s privacy is at stake.  And that usually comes, for better or worse, in the analysis of police authority in enforcing the laws against crime.  That involves a direct confrontation of citizen and government, and that is the arena in which the Fourth Amendment more commonly operates.

There is no more uncertainty in privacy law these days than over the degree of police power to search the contents of a cellphone or similar device that police obtain from a suspect they have arrested.  Must police get a search warrant to download what is in the phone’s files?  Does the nature of the device make a difference?  Is there ever an emergency situation that requires the police to check the contents immediately, without a warrant?  If they wait for any significant interval after the arrest, is that more of an invasion of privacy, so a warrant must be obtained?  What can prosecutors do with the contents after the arrest? 

The Supreme Court may soon start to answer some of those questions, because lower courts that have tried to sort out answers have become deeply divided, and that often leads the Justices to get involved.  Awaiting the Court as it returns soon from its summer recess is a case from California, in which a sharply divided state Supreme Court ruled that police in Ventura County did not violate the privacy of suspect Gregory Diaz when they downloaded the contents of a cellphone they had taken from him somewhat earlier, on his arrest on suspicion of drug dealing.  If accepted for review, it could be one of the new term’s most-watched cases.

Lyle Denniston is the National Constitution Center’s Adviser on Constitutional Literacy.  He has reported on the Supreme Court for 53 years, currently covering it for SCOTUSblog, an online clearing house of information about the Supreme Court’s work. Celebrate Constitution Day with the National Constitution Center on Sept. 16. Click here for more information.

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