Americans are celebrating Independence Day just days after the Supreme Court upheld a principle that was key to the revolution that lead to independence.
The Supreme Court unanimously ruled the 4th Amendment requires that searching a mobile phone during an arrest is not legal without a warrant.
In an era where much of what can be known about us exists electronically and on devices we carry around, rather than stored in a file cabinet at home, this was a logical but vital clarification.
This country has had long standing support for individual privacy and an aversion to broad searches. We require law enforcement officials to state a specific reason to suspect a violation of law and to define and justify the scope of the search sufficient to convince a judge to approve it by signing a warrant.
The need for probable cause was the subject of a famous argument before a select audience at the State House in a Boston in 1761, while the United States was still a British colony. The controversy started when the British government used general writs of assistance to go door to door searching homes for customs violations without probable cause. James Otis's arguments that this violated the British constitution clarified for then legal student and future president John Adams, who was sitting in the audience, that government's ability to search without probable cause was a fundamental violation of civil liberties.
Adams's impression of Otis's unsuccessful arguments against writs of assistance and his belief that this case helped set the nation on its path toward independence was recorded in a letter to his wife in 1776 as the Bill of Rights and Declaration of Independence were being finalized and signed.
Despite the disagreement in the U.S. and Britain about whether search and seizure without probable cause violated the British constitution, strong protections against search and seizure became the 4th Amendment in the U.S. Bill of Rights.
Just days ago, the Supreme Court gave its ruling that where and how personal data is stored is not as important as the principle behind why our founders added protections against search and seizure. The Justices said that the same protections against searching someone's home apply to mobile devices.
The unanimous decision said law enforcement must get court permission before searching messages, email and other data, even though a search might yield valuable information to an investigation. In such cases individual rights outweigh the convenience of the government.
At a time when it seems governments all over the world, including our own, are going too far in surveillance, censoring Internet access or removing online content, it is good to see a victory that upholds core principles of those who founded our country.
Though the Supreme Court decision was unanimous, Justice Samuel Alito filed a concurrence, adding his own arguments that legislators must now take the lead in determining privacy rights instead of leaving it up to the courts to interpret. Those of us who have advocated for better checks and balances on government access to electronic data could not agree more.
Congress needs to still update electronic privacy laws and we still need to watch for how warrants are granted so that this step remains real oversight. How we store information is changing, but the expectation of privacy of that information has stood for nearly 250 years.
It's worth remembering our history this Independence Day weekend, understanding why this principle against search and seizure without probable cause was so important to our founders, and celebrating this victory.
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