Just how much does the Constitution protect your digital data? The Supreme Court is only just coming to grips with that question. On Tuesday, it will consider whether police can search the contents of a mobile phone without a warrant if the phone is on or around a person during an arrest.
California has asked the justices to refrain from a sweeping ruling, particularly one that upsets the old assumption that authorities may search through the effects of suspects at the time of their arrest. Even if the justices are tempted, the state argues, it is hard for judges to assess the implications of new and rapidly changing technologies.
The court would be recklessly modest if it followed California’s advice. Enough of the implications are discernable, even obvious, that the justices can and should provide updated guidelines to police, lawyers and defendants.
They should start by discarding California’s lame argument that exploring the contents of a smartphone — a vast storehouse of digital information — is similar to, say, rifling through a suspect’s purse. The court has ruled that police don’t violate the Fourth Amendment when they sift through the wallet or pocketbook of an arrestee without a warrant. But exploring one’s smartphone is more like entering his or her home. A smartphone may contain an arrestee’s reading history, financial history, medical history and comprehensive records of recent correspondence. The development of “cloud computing,” means that police officers could conceivably access even more information with a few swipes on a touchscreen.
Americans should take steps to protect their digital privacy. But keeping sensitive information on these devices is increasingly a requirement of normal life. Citizens still have a right to expect private documents to remain private and protected by the Constitution’s prohibition on unreasonable searches.