The United States Constitution contains various amendments which protect individual rights. One of the most important is the Fourth Amendment which prohibits police officers or other government agents from conducting unreasonable searches or seizures of persons, places, papers, and effects. Generally, for police to search or seize you or your property, they must have a warrant. The warrant must be based “upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” (U.S. Const., Amend. IV.) Without a warrant a search or seizure is unreasonable, unless it falls within one of the few well-delineated exceptions. (Coolidge v. New Hampshire (1971) 403 U.S. 443, 454-55.)
One of the exceptions to the warrant requirement are searches incident to arrest , that is, a search conducted subject to a legal arrest. (Chimel v. California (1969) 395 U.S. 752.) In these situations, officers do not need to procure a warrant to search an arrestee or an area within their immediate control. (Id.) Up until very recently, officers could place a person under arrest and search the contents of their smart phone. To many civil liberty advocates, a search of a smart phone upon arrest far exceeded the scope of a permissible warrantless search outlined by decades of Supreme Court precedent, while law enforcement maintained that such searches were useful tools in crime prevention.
In Riley v. California, decided in June of 2014, the Supreme Court held that police “must generally secure a warrant” when searching an arrestee’s smart phone. (Riley v. California (2014) 573 U.S. )The Court reasoned that because modern smart phones can contain so much private personal information, and the failure to search these phones would not put an officer in danger like a concealed weapon, the search is beyond what is reasonable at the moment of arrest. (Id.)
Smart phones are unique in their ability to store massive amounts of information in the palm of your hand. As the Supreme Court noted in Riley, it would be nearly impossible for a person to carry physical manifestations of every piece of information on a smart phone. “Most people cannot lug around every piece of mail they have received…every picture they have taken, or every book or article they have read…if they did, they would have to drag behind them a trunk of the sort held to require a search warrant.” (Id.) Such a trove of personal information would require a warrant in their physical, non-digital state.
In light of the Supreme Court decision in Riley, increased concerns about privacy from the Edward Snowden NSA leaks, and the recent celebrity photo hacks, some tech companies have taken steps to protect their customers. A recent Washington Post article (“Apple will no longer unlock most iPhones, iPads for police, even with search warrants”) highlighted the steps Apple is taking.
Apple’s latest encryption technology will only allow the user of the mobile device in question to enter the passcode. Apple themselves will not have the ability to open the device, thereby making it impossible for them to comply with a search warrant. Therefore, the only person who would be able to unlock the device for the police pursuant to a warrant, would be the owner of the device. However, users who store data in the cloud would not be protected, as that information is not physically on the device.
Users of Apple’s new iOS8 operating system can now protect their privacy by avoiding the cloud for storage and keeping their data on the device itself. This simple step can prevent police from searching your device if you are ever arrested. Further, because Apple cannot open your iPhone or iPad when faced with a search warrant, the owner of the device holds all the power.