By Christopher B. Daly
It’s bad enough that some of the justices on the Supreme Court who are considering whether to authorize police searches of suspects’ cellphones are pretty clueless about this ubiquitous piece of technology. What really concerns me is that none of the justices expressed any concern about the First Amendment. (Or at least if they did, none of their questions broke though into the media coverage of this week’s arguments.) All the attention was focused on the Fourth Amendment, which says:
Amendment IV
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Now, don’t get me wrong. That is one fine amendment, and I don’t want to take anything away from its important safeguards. It says that police cannot just barge into your home or office and start grabbing documents. If they want to search your stuff, they have to get a warrant from a judge, and the warrant must “particularly describe” what the police expect to find.
When it comes to cellphones, there are no “papers” involved, but I think even this Supreme Court can figure out that a digital document like a text or a photo fits the meaning of what the Founders meant to protect.
Here’s where the First Amendment might enter the picture.
Consider this scenario:
A journalist is walking down the street and notices a political protest. She whips out her cellphone and uses it to make audio recordings of the natural sound as well as some interviews; she takes some photos; and she starts taking notes on the disturbance in the form of a draft email that she intends to send to herself and her editor later. Things heat up, and the police start beating protesters. Our journalist considers this newsworthy and begins taking close-up photos of police officers whaling away on protestors. A police officer orders her to stop. She refuses on First Amendment grounds and attempts to photograph his badge number and name tag. He slaps the cuffs on her and confiscates her cellphone.
What now?
Didn’t she have a First Amendment right to gather information and take photos in public? Doesn’t she have a First Amendment right to protect the identities of any confidential sources who are listed in her cellphone “contacts”? What if she has other photos, data, messages, texts and the like in her cellphone about stories in progress? Should the police, or the FBI, or the local prosecutor have the right to rummage through her cellphone without limits? Would she have a First Amendment right to remotely tell her cellphone to purge itself of all data? Would she then be committing the crime of destroying evidence, or would she be exercising her right to engage in news-gathering and dissemination?
Or, consider a second scenario:
A reporter is arrested on a DUI charge. (I know, most reporters can’t afford that much booze any more, but it could happen.) He fails a field sobriety test and the cuffs come out. Do the police have any business looking into the contents of his cellphone, since it has no bearing on the crime at issue?
Maybe if the justices on the high court used their cellphones a bit more often, they’d be more alert to these sorts of issues. Or maybe not. But I would bet that if they approve cellphone searches, something like one of these scenarios will occur pretty soon.
Prof Chris Daly's Blog 
Chris. I love your blog. You are so engaged in the critical issues we face. Thanks. bob
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Hey, Bob! Thanks so much. That means a lot. This can sometimes get a bit lonely, so it’s always great to hear from readers — especially old friends.
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You are correct that Supreme Court Justices often are clueless about common technology, but need to research legal issues more carefully before you opine about them, as I am sure there have been battles between police and reporters over cellphones. I think the answers are obvious: the video, audio, email, voicemail, phone records or notes on a reporter’s cellphone are entitled to no less–or more–protection than those on a camera, dictaphone, notepad, office telephone, etc. Smartphones are cool and convenient, but not legally unique. It is as if you would argue that a camcorder was entitled to different 4th Amendment rights than a camera.
There was no need to discuss the potential First Amendment issues you raise, because the case did not involve a reporter, just as there was no need to discuss the implications if the phone belonged to a judge, Congressman, physician, priest, foreign diplomat, attorney or other group entitled to special consideration.
I suspect the recent Supreme Court argument on seizing GPS information similarly did not include special reference to reporters, etc.
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