Supreme Court seems unsure where to draw line on smartphone privacy

In oral arguments Tuesday at the Supreme Court, the Justices appeared to be interested in limiting the police’s ability to search smartphones during an arrest, according to the Supreme Court of the United States (Scotus) blog.

In a blog post earlier this week, I said the Justices were faced with defining the Fourth Amendment – the protection from unreasonable searches – for the digital age. I will be on the Gil Gross radio show (KKSF-AM, Talk 910 AM) this afternoon at 4.30 to talk about the court’s discussion today.

From early reports about what happened in court, the Justices seemed to distinguish differences between a smartphone, as is at issue in a case from California, and a flip phone that is the center of a case from Massachusetts.

As Orin Kerr wrote in the Washington Post:

The Justices mostly seemed to agree that computers had created a “new world,” and that there was a need for some kind of computer-specific rule.

But that’s where the agreement ended.

The trickier question is how should they determine the difference constitutionally. Should the Justices decide based on a phone’s storage capacity? Was it important to consider what people view as private?

Justice Anthony M. Kennedy asked whether it was possible to rule that the flip phone would not require a search warrant but a smart phone might.

A bigger problem may be defining what a warrant for a smartphone search would ask for, according to the blog post. “What would police have to show [to get a warrant]?” Justice Ruth Bader Ginsburg said.

The court’s decision is expected in June.

Above: Outside the Supreme Court. ( AP Photo/Jose Luis Magana). 


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