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Mercury News: Smartphone searches should raise alarm
This is an archived article that was published on sltrib.com in 2013, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.

The following editorial appeared Monday in The San Jose Mercury News:

The more we hear about President Obama's attitude toward privacy, the less we like.

The latest eyebrow-raiser is the administration's argument that the Fourth Amendment allows warrantless cellphone searches. The president last week asked the Supreme Court to resolve the issue, arguing that a cellphone is no different from any other object a suspect might be carrying, such as a notebook, calendar or address book.

Hogwash.

This isn't the 1990s. Today's smartphones contain users' financial records, medical records, emails, texts, photographs, browser histories, the books, magazines and news websites they read, detailed information about their workplaces, who their friends are and where they go — morning, noon and night.

Police who want information about suspects in the 21st century might prefer access to their smartphones over the ability to search their homes.

Unfortunately, the case before the court is not a good test. It's about a Massachusetts man who, in 2007, appeared to be selling crack cocaine from his car and had with him what amounts to a primitive flip phone. Police arrested him, seized his phone and found his address and the names of people he had been calling. The information led them to his house, where they found guns, cash and drugs, leading to a conviction.

The defendant's lawyer appealed, arguing that accessing the information on his cellphone without a warrant violated his Fourth Amendment rights. The First Circuit court of Appeals agreed, saying police should have obtained a warrant.

But the Obama administration argues there was little difference between looking at the cellphone and going through his address book to locate the man's home, which is allowed by the courts.

That may be true of the case in question, given the limited information on the phone. But allowing police to search through a suspect's sophisticated smartphone clearly would violate the spirit of the Fourth Amendment.

In recent weeks, President Obama has been trying to assure Americans that the NSA and other government agencies have not abused their authority. He has said he would consider reforms to protect Americans' privacy. But his support for the right of police to search suspects' smartphones without a warrant has to heighten public fears.

Technological advances in the years ahead will only make it easier for police and the government to access information that Americans reasonably expect to be private.

If the courts swing the door wide to that access based on existing law, which never envisioned this technology, it will be up to Congress and the states to restore privacy rights. It doesn't look like the president's going to help.

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