The Daily Caller

The Daily Caller
People line up for entry into the U.S. Supreme Court, October 13, 2004.  REUTERS/Kevin Lamarque People line up for entry into the U.S. Supreme Court, October 13, 2004. REUTERS/Kevin Lamarque  

‘Get a Warrant’: Judicial Engagement Results In Huge Win For Digital Privacy

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Evan Bernick
Assistant Director, Center for Judicial Engagement

Can cops simply take your cell phone and browse through it to their hearts’ content after they arrest you? Today, in Riley v. California, a unanimous Supreme Court answered that question with a resounding “no.” It’s not only a victory for digital privacy, but an example of the kind of judicial engagement that we desperately need to protect our liberties from unreasonable government interference.

In Riley, the Court addressed the question of whether the Fourth Amendment’s warrant requirement applies to cell phone searches. In two separate cases, individuals were arrested and searched by police. The police took their cell phones and searched their phones for incriminating information. In both cases, the government used evidence taken from their phones at trial. In neither case did the police secure a warrant for the search of the cell phones.

In analyzing these cases, the Court rightly prioritized liberty and looked critically at the government’s claims. The government’s attorneys in both cases argued that the need to protect officers and preserve evidence outweighed the privacy interests at stake, justifying an exception to the warrant requirement.

While officer safety is surely a legitimate government interest, the Court observed that the data on cell phones doesn’t pose a physical threat to anyone. And while preserving evidence is surely a legitimate government interest, the Court responded that there is no reason to be concerned about the destruction of evidence once the phone is in police custody. Critically, the Court concluded that “neither the United States nor California offers evidence to suggest that their concerns are based on actual experience.”

Riley offers a case study in judicial engagement. Judicial engagement isn’t a new theory of judging, and it isn’t a complicated one. It holds that, in every constitutional case, judges should honestly seek to determine whether the government is pursuing constitutionally permissible ends through constitutionally permissible means, basing their decision on real facts and real evidence. Judges shouldn’t presume that the government is acting constitutionally and they should be vigilant in ensuring that the government doesn’t pursue even legitimate ends through means that aren’t reasonably related to those ends or that violate individual rights.

Don’t judges already try their best to keep government honest? Tragically, no. In cases that don’t implicate so-called “fundamental” rights, they often simply take the government at its word, or, worse, rationalize the government’s actions in the face of clear evidence that the people’s representatives were way out of constitutional bounds. Often praised as “modesty” or “judicial restraint,” this is in fact judicial abdication — a failure on the part of judges to do their job.

No such errors can be found in today’s opinion. Indeed, the decision ends on a note that bodes well for the future, with the Court acknowledging that cell phones “hold for many Americans ‘the privacies of life’” and stating, “The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought.” More importantly, Riley is positive proof that judges are capable of actually judging, that our courts are capable of serving as the “bulwarks of a limited Constitution,” as the Framers intended.

Evan Bernick is the Assistant Director of the Center for Judicial Engagement at the Institute for Justice, the national law firm for liberty.