Cellphone Searches and Stipends

Today’s burning question: My fire department gives firefighters a stipend of $125 dollars a year to cover the costs of various text messages they send us and any work related calls we make/receive. Does this give the department the right to search our personal phones?

Answer: No, a simple stipend would not – in and of itself – authorize a fire department to “search” someone’s cellphone. However, your question raises a number of related questions that are worth discussing in light of a recent US Supreme Court decision, Riley v. California. One question in particular is highly relevant: could a fire department adopt a policy that requires an employee who accepts a stipend to consent to a search of a cellphone? Prior to Riley, I would have said yes. Now I am not so sure.

Riley, and a companion case, US v. Wurie, involved the search of a cellphone in the context of criminal case. Let’s look at the Court’s reasoning to better understand how it will approach future cases involving cellphones:

… These cases require us to decide how the search incident to arrest doctrine applies to modern cell phones, which 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. A smart phone of the sort taken from Riley was unheard of ten years ago; a significant majority of American adults now own such phones. … Even less sophisticated phones like Wurie’s, which have already faded in popularity since Wurie was arrested in 2007, have been around for less than 15 years. Both phones are based on technology nearly inconceivable just a few decades ago, when Chimel and Robinson were decided.

The United States asserts that a search of all data stored on a cell phone is “materially indistinguishable” from searches of … physical items [such as a cigarette pack, a wallet, or a purse]. … That is like saying a ride on horseback is materially indistinguishable from a flight to the moon. Both are ways of getting from point A to point B, but little else justifies lumping them together. Modern cell phones, as a category, implicate privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet, or a purse. A conclusion that inspecting the contents of an arrestee’s pockets works no substantial additional intrusion on privacy beyond the arrest itself may make sense as applied to physical items, but any extension of that reasoning to digital data has to rest on its own bottom.

Cell phones differ in both a quantitative and a qualitative sense from other objects that might be kept on an arrestee’s person. The term “cell phone” is itself misleading shorthand; many of these devices are in fact minicomputers that also happen to have the capacity to be used as a telephone. They could just as easily be called cameras, video players, rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps, or newspapers.

One of the most notable distinguishing features of modern cell phones is their immense storage capacity. Before cell phones, a search of a person was limited by physical realities and tended as a general matter to constitute only a narrow intrusion on privacy. … Most people cannot lug around every piece of mail they have received for the past several months, every picture they have taken, or every book or article they have read—nor would they have any reason to attempt to do so. And if they did, they would have to drag behind them a trunk of the sort held to require a search warrant in Chadwick, supra, rather than a container the size of the cigarette package in Robinson.

But the possible intrusion on privacy is not physically limited in the same way when it comes to cell phones. The current top-selling smart phone has a standard capacity of 16 gigabytes (and is available with up to 64 gigabytes). Sixteen gigabytes translates to millions of pages of text, thousands of pictures, or hundreds of videos. … Cell phones couple that capacity with the ability to store many different types of information: Even the most basic phones that sell for less than $20 might hold photographs, picture messages, text messages, Internet browsing history, a calendar, a thousand – entry phone book, and so on. … We expect that the gulf between physical practicability and digital capacity will only continue to widen in the future.

The storage capacity of cell phones has several interrelated consequences for privacy. First, a cell phone collects in one place many distinct types of information—an address, a note, a prescription, a bank statement, a video that reveal much more in combination than any isolated record. Second, a cell phone’s capacity allows even just one type of information to convey far more than previously possible. The sum of an individual’s private life can be reconstructed through a thousand photographs labeled with dates, locations, and descriptions; the same cannot be said of a photograph or two of loved ones tucked into a wallet. Third, the data on a phone can date back to the purchase of the phone, or even earlier. A person might carry in his pocket a slip of paper reminding him to call Mr. Jones; he would not carry a record of all his communications with Mr. Jones for the past several months, as would routinely be kept on a phone.

Finally, there is an element of pervasiveness that characterizes cell phones but not physical records. Prior to the digital age, people did not typically carry a cache of sensitive personal information with them as they went about their day. Now it is the person who is not carrying a cell phone, with all that it contains, who is the exception. According to one poll, nearly three-quarters of smart phone users report being within five feet of their phones most of the time, with 12% admitting that they even use their phones in the shower. … A decade ago police officers searching an arrestee might have occasionally stumbled across a highly personal item such as a diary. …. But those discoveries were likely to be few and far between. Today, by contrast, it is no exaggeration to say that many of the more than 90% of American adults who own a cell phone keep on their person a digital record of nearly every aspect of their lives—from the mundane to the intimate. … Allowing the police to scrutinize such records on a routine basis is quite different from allowing them to search a personal item or two in the occasional case.

Although the data stored on a cell phone is distinguished from physical records by quantity alone, certain types of data are also qualitatively different. An Internet search and browsing history, for example, can be found on an Internet-enabled phone and could reveal an individual’s private interests or concerns—perhaps a search for certain symptoms of disease, coupled with frequent visits to WebMD. Data on a cell phone can also reveal where a person has been. Historic location information is a standard feature on many smart phones and can reconstruct someone’s specific movements down to the minute, not only around town but also within a particular building.

Mobile application software on a cell phone, or “apps,” offer a range of tools for managing detailed information about all aspects of a person’s life. There are apps for Democratic Party news and Republican Party news; apps for alcohol, drug, and gambling addictions; apps for sharing prayer requests; apps for tracking pregnancy symptoms; apps for planning your budget; apps for every conceivable hobby or pastime; apps for improving your romantic life. There are popular apps for buying or selling just about anything, and the records of such transactions may be accessible on the phone indefinitely. There are over a million apps available in each of the two major app stores; the phrase “there’s an app for that” is now part of the popular lexicon. The average smart phone user has installed 33 apps, which together can form a revealing montage of the user’s life. …

In 1926, Learned Hand observed (in an opinion later quoted in Chimel) that it is “a totally different thing to search a man’s pockets and use against him what they contain, from ransacking his house for everything which may incriminate him.” … If his pockets contain a cell phone, however, that is no longer true. Indeed, a cell phone search would typically expose to the government far more than the most exhaustive search of a house: A phone not only contains in digital form many sensitive records previously found in the home; it also contains a broad array of private information never found in a home in any form— …

What appears obvious to me from this language is that our highest Court has recognized that a cellphone is not simply another device an employee may bring into the workplace. A cellphone is a device like few others when it comes to personal privacy. While a fire department may lawfully adopt a policy requiring a firefighter to consent to a search of a locker, desk, briefcase, backpack or container brought into the workplace, a cellphone is a different animal entirely. In some ways the privacy concerns implicated by a cellphone are more akin to a search of an employee’s home than a search of an employee’s locker.

While not your original question – if the question had been:

My fire department gives firefighters a stipend of $125 dollars a year to cover the costs of various text messages they send us and any work related calls we made/receive. They have conditioned payment of this amount upon us giving our consent for the department to have the right to search our personal phones at any time. Is that legal?

… my answer would have been: I don’t think it is legal, but I am not entirely sure. A strong argument can be made that mandating employee consent to a search of his/her cellphone as a condition of receiving a cellphone stipend is akin to mandating they consent to a search of their home as a condition of accepting a job. It is not going to pass muster under the 4^th Amendment!!!

I would appreciate any input from the other legal eagles out there – but given the Court’s reasoning in Riley v. California, my sense is the Court would find such a search to be ”unreasonable” and thus in violation of the 4^th Amendment unless conducted pursuant to a search warrant.