‘Get a warrant’: the supreme court sounds off a quiet warning to the NSA
The supreme court’s huge new cellphone privacy ruling could have significant implications for the future of the NSA’s warrantless surveillance programs, Alex George explains.
The US supreme court’s 2014 term has, Hobby Lobby aside, remained mostly under the radar, but there’s one decision the NSA should certainly have been paying attention to.
In 2009, a man was pulled over in California on a traffic stop. The officers discovered a loaded firearm in his car, and arrested him, subsequently exercising their right incident to his arrest to search his car, and seize the belongings on his person — including his smart phone. Later, based on information obtained from his phone, he was charged with an unrelated, weeks-old shooting.
A legal battle ensued, focussing on the right of the Californian police to search an arrestee’s phone.
The fourth amendment protects against unreasonable search and seizure by law enforcement without a warrant, but as a general rule, police are entitled to search and seize anything on the arrestee’s person or in their immediate vicinity without one. This allows an arresting officer to ensure the suspect doesn’t have a dangerous weapon in their pocket, and doesn’t dispose of material evidence.
California, and the US government, argued that this right extended to seizing and searching mobile phones.
Last month, the supreme court disagreed, ruling that police require a warrant to search a suspect’s cell phone.
Technically, Riley v California deals purely with police powers, but there are a number of reasons why it might make the NSA’s ears prick up.
Firstly, the decision was unanimous. In a court widely criticised for its rightward leanings — last week limiting the right of women to obtain birth control — all nine justices agreeing on a liberal interpretation, and opposing a widespread police practice, sends out a clear warning.
Additionally, the court was unphased by the numerous decisions of lower courts in favour of the practice, and unconcerned by the Obama administration’s support. The president might also take note that the court has made a habit of unanimously striking down practices his administration deemed constitutional — especially embarrassing for the administration, given that two of the justices were nominated by President Obama himself.
Furthermore, the wording of the court’s opinion, delivered by chief justice John Roberts, hints at the justices’ wider ideology when it comes to warrantless searches of technology.
Unable to argue the phone was a potential weapon, the government primarily contended that they need to seize it to prevent destruction of evidence. They ultimately conceded that their power to search the phone without a warrant did not extend to remotely accessed data stored on servers elsewhere, but the court made a point of highlighting that such a practice would not be constitutional — at least in these circumstances.
Roberts likened it to “finding a key in a suspect’s pocket and arguing that it allowed law enforcement to unlock and search a house”.
Admittedly the ruling is not directly applicable to the NSA. So far as their practices are concerned, the law has not changed. They aren’t always dealing with an arrested suspect, nor are they always accessing their data through a physical smart phone. But what should terrify them is that a unanimous court won’t allow police officers brief access to an arrestee’s data when trying to obtain sufficient evidence to convict someone they have grounds to suspect of committing a crime … why would these nine people suddenly change their minds and let a government agency amass the digital lives of millions of unsuspecting, law-abiding citizens?
One final striking similarity between this case and the ongoing debate surrounding the NSA: the government argued that searching data is necessary to prevent crime. The supreme court’s opinion, echoing the response of many Americans to the Snowden revelations, ended with a three word solution: “get a warrant”.
Originally published at abstractmag.com on July 9, 2014.
