Adobe Images One bright spot in an otherwise dismal Supreme Court term was a big Fourth Amendment decision last week that forbade police from harvesting cellphone location data.
In recent years, police have been using the practice of geofencing, where they demand that Google or phone companies provide information about every cellphone present at a particular time and location. In last week’s Chatrie v. U.S. decision, the court ruled that police first need to get a warrant if they want to gobble up cellphone location history.
The Chatrie decision protects individual privacy and is a welcome development. Perhaps eager to make good news into great news, a number of commentators and legal scholars have suggested that it signals a huge shift in Fourth Amendment doctrine. Speculation is rampant that the court is going to drastically expand protection for cellphones and digital data.
Not so fast. We have seen this movie before, and the original version ended with a whimper, not a bang.
Way back in 2014, the Supreme Court decided a supposedly huge cellphone privacy case called Riley v. California. Police had been conducting warrantless cellphone searches under something called the Search Incident To Arrest exception, which allowed police to search all items on a person in order to prevent them from grabbing a weapon or destroying evidence. Police claimed that cellphones were just like purses or wallets, and that they were therefore entitled to search phones without a warrant to prevent digital data from being remotely destroyed.
The court in Riley said no, unanimously outlawed warrantless searches of phones during arrests. In doing so, the Supreme Court used sweeping language — just like the grand language in last week’s decision — to wax poetic about the “privacies of life” and the importance of warrants.
Although the Riley decision put an end to warrantless cellphone searches as part of arrests, it said nothing about police authority to conduct warrantless searches in lots of other situations. Police wasted no time in testing the boundaries.
For example, they kept searching cellphones and simply invoked other exceptions to the Fourth Amendment’s warrant requirement. For instance, each year, border agents search tens of thousands of cellphones at international borders. This includes not just checkpoints at the actual borders with Canada and Mexico, but also dozens of international airports as passengers fly back into the U.S. When Customs agents insist that you unlock your phone at an international airport, they do not need warrants or even probable cause — they rely on the border exception to the Fourth Amendment.
Public school officials regularly search the cellphones of school children to look for evidence of criminal offenses or violations of school rules. Despite the Riley decision’s lofty language about privacy, school officials do not need warrants and rely on a lower standard than probable cause.
Millions of Americans are on probation and parole, and the Supreme Court has long made it easy for probation officers to subject them to warrantless searches. The 2014 Riley decision didn’t say anything about changing the rules for searching the cellphones of people on probation and parole. So law enforcement has continued to search their phones without a warrant or probable cause.
And then there is the big warrant exception: consent. Millions of people consent to searches of their automobiles and other property each year. The Riley decision never said a word about different rules when police ask to search your cellphone. The court could have imposed tougher rules for police to get consent, or tighter restrictions on how much data police could rummage through based on consent. So police kept asking for consent to search cellphones and Americans have obliged, no warrant or probable cause required — just business as usual.
It has now been a dozen years since Riley, and the court has not taken any new cases about the various exceptions police regularly invoke to search cellphone searches without a warrant.
Maybe last week’s decision forbidding police from routinely taking location history data from Google will be different. Maybe the court is poised to dramatically reshape the Fourth Amendment to rigorously protect digital privacy the way it has long protected the home. But if past is prologue, we will be waiting years for the court to have anything new to say.
In the meantime, police might not be able to warrantlessly demand location history from cellphone providers, but that won’t stop them from aggressively pursuing cellphone data in lots of other ways.
Adam Gershowitz is the Hugh and Nolie Haynes Professor of Law at William and Mary Law School.
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