updated 04:35 pm EDT, Thu July 10, 2014
Analysts believe it could take 20 years to solve data search and seizure issues
Last month, the Supreme Court of the United States (SCOTUS) ruled that law enforcement agencies would need a warrant to access information on a cell phone in criminal cases. While the ruling was thought to be an outright win for privacy, it appears that the fight isn't over yet. Law enforcement agencies and advocacy groups are decrying the ruling, believing the need for a warrant to search held devices to be too strong a requirement. Analysts, on the other hand, believe that the fight could take 20 years to sort out.
On June 25, the Supreme Court ruled in a rare unanimous, 9-0 vote that police and other enforcement agencies would be required to obtain a warrant before searching the contents of a cell phone. The Riley v. California decision came about as the SCOTUS heard two cases relating to the use of phone data to reach convictions in the two cases. One of the cases was for drug-related activities, while the second revolved around a murder case.
"Our holding, of course, is not that the information on a cell phone is immune from search; it is instead that a warrant is generally required before such a search, even when a cell phone is seized incident to arrest. Our cases have historically recognized that the warrant requirement is 'an important working part of our machinery of government,'" said Chief Justice Roberts. He referred to Coolidge v. New Hampshire in his reasoning.
However, it appears that some agencies are still combatting the need for a warrant to search devices. The court indicated that there are exigent circumstances that would create an immediate need to seize and search a phone. In the ruling, examples given included phones being used to trigger bombings, and uncovering location information for kidnappings. Law enforcement seems to be seizing upon these examples to attempt to drill holes into the requirement for everyday enforcement.
A spokeswoman for the Department of Justice told CNN that the agency would work with other departments and law enforcement to ensure that there would be "full compliance" with court's decision. This includes the use of technology to retain evidence when a device is seized before a warrant is obtained. However, she also stated that they would work with agents on the sorts of warrant exceptions that could be made.
"We will make use of whatever technology is available to preserve evidence on cell phones while seeking a warrant, and we will assist our agents in determining when exigent circumstances or another applicable exception to the warrant requirement will permit them to search the phone immediately without a warrant," said the Department of Justice spokeswoman Ellen Canale.
The line of reasoning is counterproductive to the Riley ruling, as agencies may spend more time defining what an exigent circumstance is rather than taking the time obtain a warrant. Canale's statement can been seen as eluding to that standpoint. It also shows some disregard for the system, as agencies could come up with a list based on loose connections. In the end, exigent circumstances could be on par with the probable cause reasoning that was previously used to search devices.
Intent of the ruling could further be torn apart based on the comments of Justice Alito in the same decision. While he agreed with the court's stance, he could reconsider "if either Congress or state legislatures, after assessing the legitimate needs of law enforcement and privacy interests of cell phone owners, enact legislation that draws reasonable distinctions based on categories of information or perhaps other variables." So, if laws were passed to specifically define "information" as necessary to police and other agencies, an allowable violation of the Fourth Amendment could be made, in Alito's opinion.
However, there's another concern when it comes to the idea of getting a warrant to search a device. It could come down to police thinking that it's too hard or time-consuming to obtain a warrant. In some instances, it could mean that a suspect in custody is released since there isn't enough information to hold them.
The Fraternal Order of Police, the largest police union in the United States, relayed such concerns to NBC News. Executive Director Jim Pasco explained that police could be faced with timing situations where one criminal is arrested, while another gets away because a phone cannot be accessed. Stating that in gang situations communications are handled almost entirely by phone, he thinks the matter of public safety overrides due process.
Bill Johnson, the executive director of the National Association of Police Organizations, believes that intuition or suspected activity may not be enough to grant a warrant in these cases. "You have to make that jump," said Johnson, "I bet he's got a bunch of stuff on his phone. And that's not good enough." He adds that officers will need to point to something specific to tie a phone to a crime.
Both issues are easily addressed as Chief Justice Roberts points out in the opinion of the court. In fact, based on other rulings, Roberts pointed out that officers can send requests to judges' iPads and get a warrant back in as little as 15 minutes in some cases." Referring to Coolidge v. New Hampshire again, he added that a warrant requirement isn't "an inconvenience to be somehow 'weighed' against the claims of police efficiency."
Even with the ruling and the volatility involved with getting a warrant, that doesn't mean that all aspects of the government want to work around it. Senator Ron Wyden (D-OR), applauded the ruling when SCOTUS handed it down. Wyden wants to use the ruling as a gateway to push more digital privacy protections, including treating GPS information in devices in the same manner.
"I aim to use this decision as a springboard to secure greater privacy rights in the days ahead," said Senator Wyden.
As the debate over the ruling continues, one analyst believes that the fight over data privacy and protection in criminal cases may not be over for another 20 years. Speaking with CNet's Ben Fox Rubin, Bronson James says that the issues over phone search and seizure could take as long to figure out as automobiles. James, an attorney that helped on the Supreme Court case as well as a former network engineer, could see the decision fueling a number of cases in the future as there's "so much more to flesh this out in our court system."
"We're going to see 10, maybe 20 years of litigation about computing, digital data, mobile computing and how that interplays with the Fourth Amendment, the Fifth Amendment and a number of issues," said James.
It's clear that the SCOTUS decision to require warrants for cell phones is going to have a large impact on privacy, law-making and police enforcement for some time to come. Until a time where seizing a phone is perfectly legal without due process, Chief Justice Roberts's comment on the issue paints a brutally honest, simple path to follow: "Get a warrant."