Do law enforcement officers need a warrant to search the contents of your smart phone during an arrest? This week the Supreme Court will grapple with the question of how the Fourth Amendment should be interpreted in view of modern technology. This has created quite a national debate among Constitutional, Civil Rights and Criminal lawyers.
Smart phones are actually portable personal computers that happen to facilitate phone calls. A warrant would be required to search my laptop or my physical papers and effects at my home or office. In my opinion, he size of the computer should not change the protection accorded to me and my data. The fact that my data is stored in electronic form rather than on hardcopy paper, photos and old fashioned video tapes (remember those?) should not change my Constitutional protection. These are my basic rights. They are in the Constitution and Bill of Rights. As much as I hope the police eradicate all crime and prevent all terrorism, I can’t endorse such an impingement on my basic rights and freedoms. I am willing to accept an invasive personal search before I get on an airplane. I understand that the public safety is at issue. But searching smart phones and cell phones does nothing to enhance physical safety. They aren’t weapons. It is a mobile computer with a phone.
Proponents argue that the police can legally search a purse, wallet or address book, all things that are physically “carried on your person” and smart phones are the modern version. Since it is carried on your person, it should be subject to search. But that is hardly true. The smart phone contains data of a genre and magnitude that far exceed what an individual could physically carry in a purse or wallet. By their very nature, these mobile computers are “thin clients” that access volumes of remotely stored data. They have memory that stores far more data than what was even envisioned by the Constitutional Framers. The Editorial Board of the New York Times noted that “of the new IPhones, the smallest capacity model can hold the equivalent of 16 pickup trucks of paper, thousands of photos or hours of video.”
Think about how many arrests don’t result in convictions. Wrongful arrests open the door to unwarranted government intrusion and Big Brother monitoring of our personal affairs. I envision contrived arrests just to go on a fishing expedition… not a world I am ready to live in. I hope the Supreme Court agrees with me. I am pro-law enforcement but I am pro individual basic rights even more. The Fourth Amendment is a “check and balance” and should not be dispensed with any more than our right to free speech or right to vote. The Bill of Rights is our minimum personal protections from government tyranny.
What is your opinion?