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Our View: Entire court gets it: Smartphones are private

June 26, 2014 

It wasn’t surprising that the Supreme Court decided that smart phones – those mini-computers that contain our personal information, that can access our history, the names of our friends and much, much more – are private and require a warrant to be searched by law enforcement. After all, freedom of association and protection of personal documents is built into the Bill of Rights, one of the foundational documents of our society.

But it was surprising, pleasantly so, that Supreme Court decision upholding that right was 9-0. Every justice – from the brilliant conservative Antonin Scalia to the fiercely liberal Ruth Bader Ginsburg – sided with our right to keep the data, texts and conversations available on our phones private. The decision, written by Chief Justice John Roberts Jr., did not draw a single dissent. In a time of polarized politics, and a frequently divided court, that is profoundly impressive.

To be sure, Roberts wrote that guaranteeing privacy – implied, but not clearly stated in the Constitution among our rights – “comes at a cost.”

One of the two cases decided Wednesday was from San Diego, where a man had been pulled over in 2009 for having an expired car registration. Police found guns in his car and pored through his cellphone to uncover information tying him to a shooting for which he was later sent to prison. The California Court of Appeal ruled for the police, the state Supreme Court declined to review, and Attorney General Kamala Harris insisted the search was legal in the same way that searching suspects for hidden weapons or keep them from destroying evidence is legal without a warrant.

Echoing the U.S. Justice Department, her office said smartphones should be treated like wallets, purses and address books that have long been subject to police perusal.

But the Supreme Court said those exceptions don’t apply to smartphones. Roberts dismissed the comparison, writing, “That is like saying a ride on horseback is materially indistinguishable from a flight to the moon.”

He liked the celestial analogies, saying smartphones “are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy.”

In sending the case back to state courts for reconsideration, he acknowledged the decision will make law enforcement’s job more difficult but wrote, “Privacy comes at a cost.”

This is the right decision.

Sen. Mark Leno, a San Francisco Democrat, said he will introduce legislation next year to make sure the new standards are clearly outlined in California. He authored a similar bill in 2011, which the Legislature approved but was vetoed by Gov. Jerry Brown.

“If you keep these sensitive and extremely personal records in your desk at home, it could not be accessed by law enforcement without a warrant, but mobile phones have not been protected in the same manner,” Leno said.

Now they have been protected. With a 9-0 decision, there should be no more debate.

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