Law May Allow Police to Search Smartphones without Warrant

A police officer can search the bodies of arrested people for weapons and evidence they might try to destroy. If the police arrest a driver for a traffic violation or other crime, an officer can search the car. The doctrine is “automatic and allows officers to open containers… even if there is no probable cause to believe there is anything illegal inside,” Gershowitz’s paper says. The law treats cellphones and laptops as containers.

“I don’t want to suggest that this is really common” or that “police officers are doing this all the time,” Gershowitz said in an interview. “The question I'm raising is whether it’s going to become more common now that there’s a lot more information available” on iPhones and other smart devices, he said. Like most wireless users, Gershowitz has a 2G device holding little information beyond recent calls and SMS, he said. On the iPhone, however, an officer could open a user’s Web browser history and use saved password data for access to financial records, message board posts and other potentially embarrassing material, he said. Apple plans to ship 10 million iPhones by year-end, Gershowitz said.

Handset makers’ focus on building user-friendly devices could make searching even easier, Gershowitz said. “When police pull the guy out of the car, pat him down and make sure he doesn’t have any guns, and they find the [iPhone] in the pocket, it really only takes a matter of seconds to pull it out, flip it on, and start looking real quick,” he said. “That’s why everybody likes these things. It might take a long time to find something incriminating, but that doesn’t mean it would take the police officer long to at least do an initial look through it.”

It’s unclear whether police can search password- protected devices, Gershowitz said. That would be comparable to a police officer wanting to look in a locked glove compartment, he said. The Supreme Court “has never decided that question,” and “lower courts have split” over it, he said.

Fourth Amendment concerns raised by the Gershowitz paper are on the mark, privacy attorneys said in interviews. “Most Americans have no idea how little privacy protection they have left,” said Center for Democracy & Technology lawyer Jim Dempsey. “Legal changes wrought in the name of the wars on drugs and terror combined with the changes in technology have created a perfect storm eroding privacy rights.” There are few cases now, but “it’s going to happen later,” Electronic Frontier Foundation lawyer Lee Tien said. “The momentum is just going to pick up.” The American Civil Liberties Union also sees a “potential problem,” said ACLU lawyer Catherine Crump. “It illustrates how far this fourth amendment rule has run from its traditional application,” she said. “What should have been a rule preventing the destruction of evidence, courts have used to sanction far more invasive law enforcement techniques than anyone envisioned.”

“The container analogy is bogus” for electronic devices, Tien said. An iPhone, iPod or laptop is “not the same as a wallet.” If police want to search an iPhone, they should seize it, get a warrant and search it later, he said: “What’s the cost of delay?”

Change Won’t Be Easy

Searching phones without a warrant may raise privacy red flags, but changing the law will be difficult, Stanford law Professor Robert Weisberg said in an interview. “The search incident to arrest doctrine has proved so expansive that it’s going to be hard for the Supreme Court to limit it in the iPhone context,” he said. “Even if the justices view this as a problem that needs some kind of special Constitutional solution, the line drawing is going to be really difficult.”

The Supreme Court has found limiting the doctrine to searches related to the crime associated with the arrest isn’t a “very workable approach,” and can raise problems of officer safety, Weisberg said. The officer need not be precise in describing probable cause after the fact, he said. Fourth Amendment issues are often controversial due to the “intrinsic tension” between the police and civilians, Tien said. Police view other people as potential criminals, and civilians want the police to treat them as innocent people, he said.

The court could limit searching to “things the average Joe gets out of a cellphone,” Weisberg said. “There are certain things I could figure out pretty easily and certain things that would take a particular technological savvy.” But the movement to user-friendliness heralded by the iPhone makes that kind of limit tricky, he said.

There aren’t enough cases to justify changing the law, Orin Kerr, a George Washington University law professor, said in an interview. He said he talked with Gershowitz about the paper. “What keeps it from being a huge issue practically is that police officers making an arrest generally don’t have any reason to search on the spot. They'll normally get a warrant if they think there’s evidence.” And “usually the evidence in an arrest is not going to be found in a computer file,” he said.

Searching devices would become a major issue only if it became part of “standard operating procedures,” Kerr said. “Right now, it’s just not something that police think about,” he said. “If procedures change, and it starts to happen a lot, then the courts are going to have to really grapple with it, but right now there just haven’t been many cases.”

It will take an extraordinary case to spur action on the issue, lawyers said. “You're going to have to see some sort of outrageous case where the police go way beyond what we all think they should do but is nonetheless permitted under the rules we have now,” Gershowitz said. The case would have to involve a “middle-of-the-road member of the community,” he said. “People have very little sympathy for the guy who’s caught with child pornography on his phone, even if the police went about it in a way that we wouldn’t think is acceptable.” Weisberg agreed. A constitutionally violated drug dealer won’t work as well as “your innocent local minister” to engender sympathy, he said.

The accused innocent must be “willing to push the issue all the way up” to the Supreme Court, Gershowitz added. “Most people plea bargain out,” because “they don’t want to be at the center of media attention,” he said.

It’s hard to predict when the right case will come along, said Tien. “Most observers thought that [Atwater v. City of Lago Vista] was the outrageous case,” he said. In Atwater, a woman filed a civil lawsuit after Texas police searched her entire car during an arrest for failure to wear a seatbelt. The case went to the Supreme Court, which ruled in 2001 that there had been no constitutional violation. “Only the Supreme Court can fix this, and this Supreme Court is not likely to,” Tien said. “Things started going downhill with the Burger court in this area. It didn’t get any better with Rehnquist and I don’t expect it to get any better with Roberts.”

Privacy groups would have Justice Antonin Scalia on their side, Gershowitz said. Scalia has endorsed a limit to stop police from trolling a container unrelated to an arrest, he said. That’s a favorable sign, Crump said, especially since Scalia is “not exactly the ACLU’s traditional friend.”

A “tempting” and “least bad” solution would be a new law, Weisberg said. “That doesn’t necessarily make the line drawing any easier,” he said. “But at least then you don’t have any problems of jurisprudence in terms of where the legal authority comes from… Not to compare this issue with something profoundly important like Roe v. Wade, but technical, constitutional line drawing is obviously a problem for judges.” But Congress isn’t likely to talk about iPhone searches “until it becomes a problem,” Kerr said. More likely, it will come up in a Supreme Court case first, he said. “Congress may respond after the Supreme Court decides it.”