Should cops be allowed to search the contents of your phone, including email, photographs and text messages, without a warrant?

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On the last Friday in November in 2007, James Nix was riding shotgun in a car driving through the streets of Albany, Oregon, a freeway passthrough town between Salem and Eugene. Nix had several outstanding warrants for possession of a controlled substance, endangering the welfare of a minor and violating his parole on an earlier drug conviction. Earlier that day, an Albany police officer saw Nix take a call on his cell and then immediately after sell drugs to someone in classic hand-to-hand, money for drugs, switch. So, he'd tipped off another officer by the name of Jones to watch for the car. After investigating Nix for several weeks, they were going to make an arrest.

Officer Jones pulled Nix's friend over in a lawful traffic stop and Nix bolted. He didn't get far before being apprehended, though, and Jones patted him down, finding 22 clear plastic baggies often associated with drug dealing, $370 in cash and a cellphone. Jones said while he counted the money, the phone rang "continually." With enough evidence to make an arrest for selling drugs, Jones called Nix's investigators, who told him to deliver the phone to the Albany PD's mobile phone expert. Without a warrant, the forensics analyst searched the entire contents of the phone and "found text messages that he believed were drug related and images 'consistent with methamphetamine.'" They were subsequently used against Nix in a trial which found him guilty.

Ask yourself: Do you think it was OK for the police to search the contents of Nix's phone without a warrant?

It's a complicated issue. We have rules against warrantless searches for good reason. On the other hand, law enforcement doesn't want to lose the ability to do everything it can to catch people they think are criminals.

Here's the legal issue at the heart of the case, which will be argued before the Oregon Supreme Court next week. We all know that the Fourth Amendment to the Constitution protects everyone from "unreasonable" search and seizure. Since the 18th century, though, many cases have touched on how to define what is and is not unreasonable.

Under English common law, it was generally considered reasonable for the police to search you while you were being arrested. It became known as the "search incident to arrest exception" and has been around in American law for well over 100 years. The big change to the exception came in the 1969 case Chimel vs. California, which laid out a key exception to the exception. Namely, if a suspect was arrested in his home, the police couldn't search his whole house. As Wikipedia summarizes it, the police could only search, "the area within the immediate control of the suspect," or as James Nix's attorney Bronson James more colorfully put it, there is a "wingspan rule." If you can reach it, the cops can search it.

Since then, there have been a variety of exceptions to the exceptions to the exceptions as courts try to grapple with the definition of "unreasonable." Courts have said that some types of objects near you are searchable -- purses, backpacks, diaries, etc. -- but that others might not be, like, say, a trunk.

Cellphones, indeed all digital devices, complicate the whole idea. Defense attorney James argued in a brief he filed this month that cellphones, as receptacles of bits, needed protections that objects made of atoms simply did not.

Framing the search incident to arrest doctrine in terms of purses and backpacks no longer works. ... Such a container is constrained by its physicality. It can hold only so much. It is finite. And as such, the privacy intrusion in searching a physical container is also finite.

But [cellphones and other devices] are not containers so much as portals. They themselves hold a vast amount of information, but also hold access to cloud information. They can hold anything, and are infinite. And, correspondingly, the privacy invasion of a full search of their contents is potentially infinite.

But the Oregon Appllate Court didn't agree. They argued that there really wasn't anything so novel about "cellular telephones" and that old analogies worked just fine.

"The premise of defendant's arguments is that cellular telephones are so special, indeed unique, in their character and capacity that they must be treated differently than other receptacles of possible evidence of crimes -- including, for example, 'day-timers,' calendars, address books, letters and even diaries -- in a defendant's possession at the time of arrest," the court wrote. "Ultimately, on a fully developed record, there could be some merit to that claim. But, even in this Wi-Fi age, it is hardly a self-evident-much less judicially noticeable-proposition, factually or legally."

I'm not a legal scholar, but it does seem self-evident to me that a cellphone like mine containing 14,000 text messages, all of my Facebook and phone contacts, hundreds of photographs, access through Gmail to my entire email history, location data going back more than a year and every website I've ever visited on it is qualitatively different from an address book. And the smarter our phones get, the more different they become. As everyone in the technology world has said out loud or to themselves at one point or another, we're all carrying computers in our pockets, computers that hold location data tied to everything we do and connect through the Internet to many, many facets of our lives. Should it take a warrant to access that universe? Boy, I hope so, but some of the case law seems to make physical size the key attribute on which the need for a warrant turns. In an era of miniaturization of computer memory, that's just ludicrous.

Nix's attorney, James, argues that we should think of phones as something more akin to our homes. If there is going to be a historical analogy made, he thinks we've got to go all the way back to the reasons that the Fourth Amendment came into being.

"The Fourth Amendment talks a lot about the protection of the home because the things that you valued most in your life were most likely to be found in your home: your letters, your records, your possessions. your strongbox full of money. They were all tangible objects that resided in your house," James told me. "Now, there is no strongbox of money, but my iPhone does have a permanent connection to Wells Fargo. My medicine and health records are not sitting in my home but I do have a Providence Health app. My email is my correspondence. As the technology has progressed, it has enabled us to shrink the home and carry it around in our pocket. The capability of our technology to miniaturize cannot therefore also minimize constitutional protections."

Nationally, both the Ohio and California supreme courts have taken on the question of warrantless cellphone searches. The Ohio Supreme Court ruled that the searches did violate the Fourth Amendment, although three judges dissented saying searching cell phones was analogous to searching address books. (I make the obvious observation that perhaps those justices' cellphones are quite like an address book, but mine certainly is not.) California, on the other hand, held that the phone was "immediately associated" with the defendant and therefore searchable.

The Electronic Frontier Foundation has been active in these battles, too. The EFF filed a brief of amicus curiae in support of James's case. They note that "the touchstone question" for any Fourth Amendment case is whether an individual "has a reasonable expectation of privacy." Of course, because everyone has personal information stored on cellphones many courts have found that people have a reasonable expectation of privacy with regard to the phone's data.

If warrantless cellphone searches are allowed, any time someone is arrested carrying a phone -- so almost always -- the government will be able to comb through everything that they are able to access through the phone and with the help of the best tools that mobile forensics can provide.

"If the court accepts the government's position, a person's digital life will be an open book for law enforcement whenever the owner of a device is arrested," the EFF concluded.

Oregon's Supreme Court will hear oral arguments for the case May 4, but I suspect this issue will eventually wend its way to the Supreme Court.

What's really at issue here is whether it's the size of the digital device that matters or the amount of information it contains. It's a classic case where if you think about it in terms of the atoms -- the stuff -- you get one answer but if you think about it in terms of bits you get another. The phone is small, so it is easy to have it "immediately associated" with you. But the information it contains is vast and wide-reaching and valuable.

The battle points out just how tuned our laws are to our bodies. Remember the wingspan rule or the plain view doctrine, which presupposes a certain resolution for your eyes? These things only make sense in the world of atoms. And we don't yet have new rules for that other, constantly growing world of bits.

THE MOBILE PRIVACY SERIES

Stay tuned for Part III of our series on what your phone knows and mobile privacy, when we deliver our promised visit to the National Institute of Standards and Technology's Cell Phone Forensics Testing Laboratory.

Image: Alexis Madrigal.

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