SUPREME COURT NOTEBOOK

Warrant needed to search cellphones By Mark Sherman Associated Press WASHINGTON (AP) - A unanimous U.S. Supreme Court ruled Wednesday that police generally may not search the cellphones of people they arrest without first getting search warrants in an emphatic defense of privacy in the digital age. Cellphones are unlike anything else police may find on someone they arrest, Chief Justice John Roberts wrote for the court. They are "not just another technological convenience," he said, but ubiquitous, increasingly powerful computers that contain vast quantities of personal, sensitive information. "With all they contain and all they may reveal, they hold for many Americans the privacies of life," Roberts declared. So the message to police about what they should do before rummaging through a cellphone's contents following an arrest is simple: "Get a warrant." The chief justice acknowledged that barring searches would affect law enforcement, but he said: "Privacy comes at a cost." What about other countries? Canada's Supreme Court ruled last year, much as the U.S. justices did, that officers need a specific warrant to search a computer or a cellphone because the devices "give police access to an almost unlimited universe of information." In Britain, however, warrantless searches of cellphones and other electronic devices are routine; London police stations are even equipped with special devices to suck data from the phones of arrestees as they're booked. By ruling as it did, the U.S. court chose not to extend earlier decisions from the 1970s- when cellphone technology was not yet available - that allow police to empty a suspect's pockets and examine whatever they find to ensure officers' safety and prevent the destruction of evidence. The Obama administration and the state of California, defending cellphone searches, said the phones should have no greater protection from a search than anything else police find. But the defendants in the current cases, backed by civil libertarians, librarians and news media groups, argued that cellphones, especially smartphones, can store troves of sensitive personal information. "By recognizing that the digital revolution has transformed our expectations of privacy, today's decision is itself revolutionary and will help to protect the privacy rights of all Americans," said American Civil Liberties Union legal director Steven Shapiro. Under the U.S. Constitution's Fourth Amendment, police generally need a warrant before they can conduct a search. The warrant itself must be based on "probable cause," evidence that a crime has been committed. In the cases decided Wednesday, one defendant carried a smartphone, while the other carried an older flip phone. The police looked through both without first getting search warrants. Roberts said there's no comparison between cellphones and packages of cigarettes and other items that were at issue in the earlier cases. A ride on horseback and a flight to the moon both "are ways of getting from point A to point B, but little else justifies lumping them together," he said. Authorities concerned about the destruction of evidence can take steps to prevent the remote erasure of a phone's contents or the activation of encryption, Roberts said. The police still may seize the cellphone and turn it off or remove its battery. If they think that turning it off could trigger encryption when the phone is turned back on, police can leave the phone on and place it in a special Faraday bag that isolates the phone from radio waves, he said. One exception to the warrant requirement left open by the decision is a case in which officers reasonably fear for their safety or the lives of others. Justice Samuel Alito joined in the judgment, but he wrote separately to say he would prefer that elected lawmakers, not judges, decide current matters of privacy protection. Elected officials "are in a better position than we are to assess and respond to the changes that have already occurred and those that almost certainly will take place in the future," Alito said. The two cases arose after arrests in San Diego and Boston. In San Diego, police found indications of gang membership when they looked through defendant David Leon Riley's Samsung smartphone. Prosecutors used video and photographs found on the smartphone to persuade a jury to convict Riley of attempted murder and other charges. California courts rejected Riley's efforts to throw out the evidence and upheld the convictions. The court ordered the California Supreme Court to take a new look at Riley's case. In Boston, a federal appeals court ruled that police must have a warrant before searching arrestees' cellphones. Police arrested Brima Wurie on suspicion of selling crack cocaine, checked the call log on his flip phone and used that information to determine where he lived. When they searched Wurie's home and had a warrant, they found crack, marijuana, a gun and ammunition. The evidence was enough to produce a conviction and a prison term of more than 20 years. The appeals court ruled for Wurie, but left in place a drug conviction for selling cocaine near a school that did not depend on the tainted evidence. That conviction also carried a 20-year sentence. The administration appealed the court ruling because it wanted to preserve the option of warrantless searches following arrest. The justices upheld that ruling. -------- Associated Press writers Nancy Benac in Washington and Raphael Satter in London contributed to this report. Court sideswith employees WASHINGTON (AP) - The Supreme Court on Wednesday sided with bank employees in a lawsuit against Fifth Third Bancorp that accused management of irresponsibly investing employee retirement money in the bank's then-failing stock. The unanimous ruling came in a case involving a retirement fund invested primarily in the bank's stock. The court considered whether those in charge of investing in the fund have the freedom or the duty to direct investment money elsewhere when they have reason to believe the stock price is inflated. The employees said management knew that borrowers increasingly were defaulting on risky, subprime loans, but concealed that information or misled investors. The bank continued to invest in the stock-ownership fund even when the problems came to light and the share price plummeted. The suit asserted that those actions violated management's duty to take good care of the employees' retirement money. The 6th U.S. Circuit Court of Appeals allowed the case to proceed. The justices ordered the appeals court to re-examine the case in light of Wednesday's ruling, although they agreed with the appellate judges that the actions of bank management do not merit special protection when dealing with a bank-stock fund. The name of the company stems from the union of two banks, the Third National Bank and the Fifth National Bank. The case is Fifth Third Bancorp v. Dudenhoeffer, 12-751. Justices rulefor broadcasters By Mark Sherman Associated Press WASHINGTON (AP) - The U.S. Supreme Court ruled Wednesday that a startup Internet company has to pay broadcasters when it takes television programs from the airwaves and allows subscribers to watch them on smartphones and other portable devices. The justices said by a 6-3 vote that Aereo Inc. is violating the broadcasters' copyrights by taking the signals for free. The ruling preserves the ability of the television networks to collect huge fees from cable and satellite systems that transmit their programming. Had services such as Aereo been allowed to operate without paying for the programming, more people might have ditched their cable services, meaning broadcasters would have been able to charge less for the right to transmit their programs. Aereo looks a lot like a cable system, Justice Stephen Breyer wrote for the court in rejecting the company's attempts to distinguish itself from cable and satellite TV. "Aereo's system is, for all practical purposes, identical to a cable system," he said. Aereo is available in New York, Boston, Houston and Atlanta among 11 metropolitan areas and uses thousands of coin-size antennas to capture television signals and transmit them to subscribers who pay as little as $8 a month for the service. Because each subscriber is temporarily assigned a dime-sized, individual antenna, Aereo had made the case that it wasn't like a cable company and wasn't doing anything customers couldn't do on their own at home. Breyer seemed to suggest the company was too-cute-by-half as he announced the opinion. He laid out the company's argument that its tiny antennae don't really transmit to the public and then said, "Hmmm," followed by a long pause. Then he added: "Well, we think that this argument makes too fine a point." Company executives and prominent investor Barry Diller have said their business model would not survive a loss at the Supreme Court. Aereo chief executive Chet Kanojia called the decision "a massive setback for the American consumer" and said the company would continue to fight, without being specific. Some justices worried during arguments in April that a ruling for the broadcasters could also harm the burgeoning world of cloud computing, which gives users access to a vast online computer network that stores and processes information. But Breyer said the court did not intend to call cloud computing into question. Justices Antonin Scalia, Samuel Alito and Clarence Thomas dissented. Scalia said he shares the majority's feeling that what Aereo is doing "ought not to be allowed." But he said the court has distorted federal copyright law to forbid it. Congress should decide whether the law "needs an upgrade," Scalia said. Broadcasters including ABC, CBS, Fox, NBC and PBS sued Aereo for copyright infringement, saying Aereo should pay for redistributing the programming in the same way cable and satellite systems must or risk high-profile blackouts of channels that anger their subscribers. The National Association of Broadcasters praised the court for rejecting Aereo's argument that the lawsuit was an attack on innovation. "Broadcasters embrace innovation every day, as evidenced by our leadership in HDTV, social media, mobile apps, user-generated content, along with network TV backed ventures like Hulu," NAB president Gordon Smith said. The broadcasters and professional sports leagues also feared that nothing in the case would limit Aereo to local service. Major League Baseball and the National Football League have lucrative contracts with the television networks and closely guard the airing of their games. Aereo's model would pose a threat if, say, a consumer in New York could watch NFL games from anywhere through his Aereo subscription. The federal appeals court in New York ruled that Aereo did not violate the copyrights of broadcasters with its service, but a similar service has been blocked by judges in Los Angeles and Washington, D.C. The 2nd U.S. Circuit Court of Appeals said its ruling stemmed from a 2008 decision in which it held that Cablevision Systems Corp. could offer a remote digital video recording service without paying additional licensing fees to broadcasters because each playback transmission was made to a single subscriber using a single unique copy produced by that subscriber. The Supreme Court declined to review that ruling. -------- Associated Press writers Nancy Benac and Anick Jesdanun in New York contributed to this report. Published: Fri, Jun 27, 2014