Good news: The Supreme Court ruled today that the police have to have a warrant to search the cell phone of someone they arrest.
Chief Justice John G. Roberts Jr., writing for the court, said the vast amount of data contained on modern cellphones must be protected from routine inspection.
The old rules, Chief Justice Roberts said, cannot be applied to “modern cellphones, which are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy.”
The courts have long allowed warrantless searches in connection with arrests, saying they are justified by the need to protect police officers and to prevent the destruction of evidence.
But Chief Justice Roberts said neither justification made much sense in the context of cellphones. On the other side of the balance, he said, is the data contained on the typical cellphone. Ninety percent of Americans have them, he wrote, and they contain “a digital record of nearly every aspect of their lives — from the mundane to the intimate.”
Even the word “cellphone” is a misnomer, he said. “They could just as easily be called cameras, video players, Rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps or newspapers,” he wrote.
Chief Justice Roberts acknowledged that the decision would make law enforcement more difficult.
“Cellphones have become important tools in facilitating coordination and communication among members of criminal enterprises, and can provide valuable incriminating information about dangerous criminals,” he wrote. “Privacy comes at a cost.”
Bad news: The Supreme Court ruled four years ago that employers have the right to search the cell phones of their employees.
A hesitant Supreme Court waded cautiously into a question that arises daily in workplaces and offices across the country: whether employers have the right to look over the shoulders of workers who use company computers and cellphones for personal communication.
In the first ruling of its kind, the justices said they do, as long as there is a “legitimate work-related purpose” to monitor them. But the court said it would proceed cautiously in deciding how far an employer can go in searching the “electronic sphere” that has become an inescapable part of the modern workplace.
In the case at hand, the court ruled unanimously that a police chief’s search of text messages sent and received by a SWAT team officer did not violate his constitutional protection against unreasonable searches.
Even though Sgt. Jeff Quon of Ontario, Calif., had some expectation of privacy, the court said, the police department’s review — which turned up sexually explicit messages to his wife and his mistress — was justified.
But at a time when many employers warn that they can monitor workers’ use of company computers and cellphones, the court was reluctant to draw clear lines between what is private and what is not.
Quon’s case may sound familiar to many workers. Even though the department told him and his co-workers that they should not expect privacy when using their pagers, they were also told that personal use would be tolerated to a certain degree. If he exceeded the monthly allotment of texts, he was told, he would have to pay the difference.
He did go over the allowed number, but his superiors tired of collecting the fees and wondered whether the plan was too limited. The police chief ordered the records from the company that provided the texting service.
After removing the texts Quon sent when he was off-duty, his bosses found that the vast majority of his texts were personal — 400 of 456 one month. According to Kennedy’s opinion, he was “allegedly disciplined.”
Quon sued, saying the search violated the Fourth Amendment protections against unreasonable searches for him and those who texted him.
A district judge and the U.S. Court of Appeals for the 9th Circuit agreed with him.
But the justices said Quon should not have assumed that his text messages “were in all circumstances immune from scrutiny.” Kennedy said the department’s search was reasonable and, by eliminating those messages he sent while off-duty, not intrusive.
To my knowledge, the Court has not yet ruled on cases where the communication device in question was the employee’s personal property. That said, the fact that the pager in Quon’s case belonged to the employer does not seem to have been the operative issue; more important was, given the employer’s policies, the employee’s expectation of privacy. And since many employers make it explicit that employees should have little to no expectation of privacy on their communication devices at work, I’m not sure a case in which the phone belonged to the employee would make much of a difference.
So here is how things stand: when it comes to cell phone use, you have more protection against government searches than you do against employer searches. As an employer, the police have far more freedom to search cell phones than they do as an agency of the government.
Update (10 pm)
I should have noted this earlier, but it should also be emphasized that in the second case, the employer is the government. That the Court is even as solicitous of an employee’s privacy rights in that case as it is is probably due mostly to the fact that the employer in this case is the government. If the employer were private, there would be a much lower guarantee of employee privacy.
I should also note that in the Quon case, part of the employee’s expectation of privacy had to do with the fact that the pager belonged to the police. But the Court was careful to note that it did not want to make hard and fast rules about under what circumstances an employee could have a legitimate expectation of privacy.