You know a U.S. Supreme Court decision is going well when the writer of the majority opinion favorably references James Otis.
Ruling on Wednesday that police need a warrant before they can search someone’s cellphone, the court cited Otis’ 1761 speech in Boston against what were then called “writs of assistance,” known today as warrantless searches. Under such writs, the British government would send troops or sheriffs or other representatives of the king to search colonists’ homes in an effort to find and arrest people who were disloyal to the crown.
Otis, one of Boston’s leading revolutionaries, denounced the law allowing writs of assistance as “the worst instrument of arbitrary power, the most destructive of English liberty and the fundamental principles of law, that ever was found in an English law-book.” It creates “a power that places the liberty of every man in the hands of every petty officer.”
Chief Justice John Roberts wrote for the court that a cellphone is a small computer capable of storing the equivalent of millions of pages of documents. Government searches of personal papers helped spark the Revolutionary War itself, Roberts noted. If the government cannot search our personal papers without a warrant, then it may not search the place where we store such papers, even if that place is now small and portable.
“Modern cellphones are not just another technological convenience,” Roberts wrote. “With all they contain and all they may reveal, they hold for many Americans ‘the privacies of life,’ Boyd, supra, at 630. The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought. Our answer to the question of what police must do before searching a cellphone seized incident to an arrest is accordingly simple — get a warrant.”
Seizures and searches of electronic devices are a serious concern even here in New Hampshire and within a short drive of our borders. One of the cases on which the Supreme Court ruled on Wednesday involved Brima Wurie, arrested in Boston. The unanimous ruling (itself remarkable) did allow exceptions for “exigent circumstances,” in which searching a phone without a warrant could be justified. Those would include instances in which police are pursuing a fleeing suspect or trying to save the life of a severely injured person. But as a rule, the government may not search your phone without a warrant.
The ruling applies to information stored inside the phone, but not to information broadcast out of it or stored in a phone company’s records — such as call logs or other records. The government retains broader authority to search records that would allow it to track your movements and build a database of your associates. As welcome as Wednesday’s ruling in Riley v. California is, the Fourth Amendment remains in a weakened state that would have alarmed James Otis and his companions.