There has been quite a bit of news lately, along with general commentary on this blog, about the legality of police searches of the contents of an arrestee’s cell phone. The issue raised in United States v. Wurie, which the Court has agreed to review, is whether the Fourth Amendment permits the police, without obtaining a warrant, to review the call log of a cellphone found on a person who has been lawfully arrested. (The Court has also agreed to hear a companion case out of California: Riley v. California.) But there is more here than meets the constitutional eye, or so maintains Robert Corn-Revere, a noted First Amendment lawyer who is a partner at the Washington, D.C. office of Davis Wright Tremaine. Yesterday, he filed an amicus brief on behalf of the National Press Photographers Association and thirteen media organizations in support of the Petitioner in the Wurie case. What is interesting about this brief is the First Amendment argument Mr. Corn-Revere offers up to buttress the Fourth Amendment claim at stake in these cases.
Here is the media interest in all of this: “Of particular concern to Amici, media outlets increasingly rely on issuing reporters smart phones to take photographs and to record other story elements. Cell phone cameras are capable of taking high quality photographs and audio-visual recordings. And, because smart phones can connect to the Internet, it is easy for journalists to upload photo, video, audio, or text files to the Internet to file reports.” So opens this amicus brief.
Here is the problem for the media: “These new technologies have greatly expanded the ability to gather and report news, but the same capabilities that make them a boon to journalists create a grave threat if they are subject to unrestricted warrantless searches incident to arrest. Unfortunately, the threat is not just hypothetical, and the enhanced newsgathering capacity may have made reporters more frequent targets of police action. There has been an epidemic of arrests for nothing more than the journalistic enterprise of photographing public events. Frequently, such arrests are made on generalized charges of ‘disorderly conduct’ or ‘disturbing the peace,’ and often charges are dismissed without further action. But such circumstances could be used, and in some cases have been used, as a predicate to search or seize photographic equipment.”
Here is the First Amendment take on this: “It is essential that the Fourth Amendment be scrupulously applied in cases that involve sophisticated communications technologies because of the inherent intrusion of warrantless searches on . . . other fundamental rights,” including First Amendment rights. This interconnectivity of rights, Corn-Revere argues, has both historical roots and contemporary significance in our cellular world. Or as he puts it: “These interconnected rights have long been ‘part of the intellectual matrix within which our own constitutional fabric was shaped,’ . . . and [any] failure to protect them in light of changing technology would risk converting constitutional principles into ‘impotent and lifeless formulas’ whereby ‘[r]ights declared in words might be lost in reality.’ Olmstead, 277 U.S. at 473-74 (Brandeis, J., dissenting).”
Oral argument in the two cases is set for April 29th. Read More