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Lawyers React to Supreme Court’s Cell Phone Search Ruling

June 25, 2014

​Fenwick & West privacy co-chair Tyler Newby was quoted in two Law360 articles regarding the Supreme Court’s decision in several high-profile cell phone privacy cases.

On June 25, the Supreme Court released their long-awaited decision in several cases involving cell phone privacy and warrantless searches by police, ruling that law enforcement must obtain a warrant before searching the digital information on a cell phone.

 “The Supreme Court’s unanimous decision today reached the expected outcome of deciding that law enforcement must obtain a warrant before searching the contents of cell phones incident to an arrest,” Newby told Law360.

“The Court’s opinion contained sweeping statements on the privacy interests of individuals in the content stored on their phones that provide clues on how the Court will address privacy issues on a wide range of electronic privacy issues, including Internet search history, geo-location information, mobile app purchases and cloud storage.”

Newby said that the ruling could lead to class action suits that make invasion of privacy claims against companies collecting data without appropriate consent from consumers.

“The high court’s ruling, for example, flags Internet search history and historical location information as [elements] that individuals do have a privacy interest in,” he said. “Therefore, analytics companies and app developers would want to be aware of this opinion because it reinforces what a lot of privacy advocates have been saying in recent years, that consumers should at least have the opportunity to be aware of this kind of data collection.”

Newby told Law360 that the ruling also leaves open whether individuals have privacy rights with regard to digital data held elsewhere by their cell phone service providers.

“The court’s opinion doesn’t answer the question that is currently being debated about whether individuals have a reasonable expectation of privacy in location data that is not stored on phones but is in the possession of service providers, but it does give some strength to the argument that there is a reasonable expectation of privacy in this information and that access should require a warrant,” he said.

“The dicta in this opinion is another arrow in the quiver for arguing that they need a warrant and that a subpoena or search warrant is not sufficient,” Newby commented.

The full articles are available through the Law360 website: “High Court Ruling Bolsters Privacy Push by Consumers, ISPs" and “Lawyers React to Supreme Court's Cellphone Search Ruling" (subscription required).