In the recent decision of Riley v California, the US Supreme Court has unanimously voted in favor of the protection of digital information that can be obtained from an arrested individual’s cell phone. The decision raised concerns whether digital content stored on a cell phone should enjoy privacy protection.
Warantless search
In Riley v California the US Supreme Court ruled that an arrested individuals’ phone can no longer be searched by the police without a warrant. The debate was triggered by two cases. One petitioner in this case was Mr. Riley, who was arrested after a traffic stop. While arrested, the police searched his cell phone and came across pressing evidence regarding Riley’s gang membership. Furthermore, the evidence obtained from Riley’s phone was linked to a pending and, at that time, unsolved crime. While Riley moved to suppress the evidence extracted from his cell phone, his motion was denied and he was sent to prison. The second Petitioner was Mr. Wurie, who was arrested while he appearing to be distributing drugs. Although his phone was not a smart phone, the police tracked the incoming phone number which led to Wurie’s house. Later, the house investigation provided evidence to support pressing charges against Wurie. Similarly to Riley, Wurie had also unsuccessfully moved to suppress the evidence gained in the house investigation and was also convicted.
Based on previous case law, the police were eligible to conduct a warrantless search as long as it followed the purpose of preventing a destruction of evidence and if it was done in order to protect the safety of officers. Additionally, the Court clarified that a phone may be examined only in physical aspects – if it was going to be used as a weapon that would facilitate an arrestee’s escape. Clearly, digital information stored in a self-phone cannot provide a direct danger to the arresting officer nor can it be a tool that would ease an escape. As for the destruction of the evidence, the Government’s fear of possible encryption of data or deletion seemed irrelevant as the chances of the police being able to search an unlocked smartphone are remote.
More intrusive in the digital era
On the other hand, smart phones are able to store an enormous capacity of users’ personal data. Consequently, as the Court interpreted, warrantless search is much more intrusive compared to pre-digital era, particularly because “more than 90% of American adults who own cell phones keep on their person a digital record of nearly every aspect of their lives.” Moreover, the data that can be found on a cell phone can be stored on distant servers, which can open up a debate on data transfers. Clearly a comprehensive guidance to the law enforcement authorities that would take into consideration recent technology developments was missing.
The Government therefore proposed the following guidance:
- Allowing a warrantless search of an arrestee’s cell phone when it is reasonable to believe that the phone contains evidence of the crime of the arrest;
- Restrict the scope of a phone search to information relevant to the crime, the arrestee’s identity or officer’s safety;
- Officers may search a cell phone data if they obtained the same information from pre-digital counterpart.
However, the Court found the Government’s guidance on the issue quite unclear and proposed obtaining a warrant as a solution. Additionally, it can be speculated that such a ruling might affect the combat against crime and furthermore, enhance discrimination towards arrestees being found possessing “old fashioned” evidence such as pictures. Still, the decision is an important milestone in safeguarding human rights.
The issue of balancing citizens’ rights, namely the right to privacy and safeguarding individuals’ personal data with the need to effectively fight against crime, has been tackled in the EU as well. Currently rules on data protection are being reviewed, aiming to produce two instruments: General Data Protection Regulation and Data Protection Directive for Law Enforcement purposes. The scope of the Directive is to establish rules on cross-border data processing. Furthermore, it also aims to apply to all processing activities carried out by competent authorities. Such interference with a national criminal legislation had been often pointed out as challenging. The final text, however, of the Directive remains unknown until discussion in the Council is completed.
Although the Directive does not provide rules regarding the need of the warrant in case of a cell phone inspection, it does additionally safeguard processing of a sensitive data. The detail rules on a criminal investigation and proceedings do however remain under the scope of national legislation.
