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Supreme Court's cellphone decision brings court into 21st century, says Stanford law professor

Stanford law Professor Jeffrey Fisher says the Supreme Court's ruling in Riley v. California recognizes the privacy aspect of digital information in an increasingly technological age.

AP Photo/Lawrence Jackson Jeffrey Fisher at Supreme Court

Jeffrey Fisher speaks with the media outside the U.S. Supreme Court in 2008.

The U.S. Supreme Court unanimously ruled on Wednesday that police must obtain a warrant before searching the contents of a cellphone seized from someone who has been arrested.

A leading authority on Supreme Court practice, Stanford law Professor Jeffrey Fisher argued before the court in Riley v. California as one of the lawyers for the cellphone owner. He and students from the Stanford Supreme Court Litigation Clinic (Fisher is a co-director of the clinic) represented David Riley, a college student currently serving a prison term largely due to evidence found on his cellphone by police in a warrantless search.

Fisher, who has argued 23 cases before the nation's highest court, gave the Stanford News Service his perspective on the ruling.


What is your reaction to the Supreme Court's decision?

The decision brings the Fourth Amendment into the 21st century. The core of the decision is that digital information is different. It triggers privacy concerns far more profound than ordinary physical objects. Indeed, the court quite rightly suggests that many Americans now feel a greater need for privacy with their smartphones than their homes. It's gratifying to see the court accounting for that fundamental shift in assessing what is "reasonable" under the Fourth Amendment. Living Constitution or not, it shows the genius of the Framers' design and the court at its best.

It's also thrilling to see the students' work rewarded and vindicated. Over the past year, students in the Supreme Court Litigation Clinic poured hundreds of hours into the case – thinking, researching, drafting and editing our briefs. It's not an understatement to say that the technological savvy the justices displayed yesterday was in significant part due to our students' excellent presentation of the legal and factual issues surrounding cellphone use in the digital age.


What is the difference between cellphones and other personal items when it comes to warrantless searches?

Smartphones are different than ordinary physical items for three reasons: (1) they contain vastly more information, much of it highly sensitive, than any physical object could hold; (2) they increasingly contain different types of information than any physical item, such as real-time physiological information about the inside of one's body and data and controls about the inside of one's home; and (3) they are such an indispensable tool for modern life that one doesn't really have a "choice" whether to carry one outside the home.


Are immediate searches of cellphones necessary to keep police officers safe?

Very rarely, because digital data can't physically threaten an officer. In the highly unusual case where an officer reasonably believes he needs to search a smartphone immediately for public safety reasons, such as a bomb threat, we agree that the officers should be able to conduct a search without a warrant.


Should cellphone searches be limited or expanded depending on whether a minor crime or major crime is involved?

No. The court has made clear over and over that the rules governing arrests should not vary according to the severity of the crime, in part because officers often don't know how serious the crime of arrest is – it might depend, for example, on what exactly is in a baggie seized from the arrestee or how much it weighs – and in part because it's very difficult to agree on any dividing line between serious and non-serious offenses.


Why or why not should the Supreme Court be fashioning constitutional principles to reflect fast-changing technologies like cellphones?

It is appropriate for the court to explain at least in general terms how the Fourth Amendment applies to digitized information. The court need not delve into the minutiae of the latest operating system. But it should set constitutional baselines for privacy in the digital age. If that spurs legislative action in the future, that would be fine.

Read more about Stanford Law School experts weighing in on recent Supreme Court rulings.