DOJ Comes Out Against Consumer-Friendly Against Cell Phone Kill Switches in SCOTUS Brief

In a Supreme Court brief, the Department of Justice sets itself at odds with state legislators and cell phone users for its stance on warrantless cell phone searches.

Last week, the Justice Department came out in favor of warrantless cell phone searches but against phone kill switches, which allows someone to remotely disable their phone or erase their personal data, in one of two related cases that will be heard before the Supreme Court on Tuesday.

USA v. Wurie and California v. Reily will decide whether or not police can search a person’s cell phone without a warrant at the time of their arrest. The cases are interesting in their own right because the Supreme Court has the chance to establish a Fourth Amendment precedent in an increasingly mobile society and as cell phones can record a person’s every movement.

In a brief submitted last week, the Department of Justice wrote that

[t]his Court should not deprive officers of an investigative tool that is increasingly important for preserving evidence of serious crimes based on purely imaginary fears that police officers will invoke their authority to review drug dealers’ “reading history,” …, gang members’ “appointments with marital counselors,” or armed robbers’ “apps to help smokers quit.”

Even though legislation and consumer pushes for kill switches are popular, the Justice Department wrote that they give criminals the opportunity to destroy evidence. 

[S]earching an arrestee’s cell phone immediately upon arrest is often critical to protecting evidence against concealment in a locked or encrypted phone or remote destruction. … In its two prior briefs, the United States provided extensive citations to forensic authorities and guidelines detailing the immense challenges that passcode-locking and encryption pose to law-enforcement investigations. … Those tactics [passcode locking and encryption] are not the actions of third parties, but rather automatic functions that an arrestee — potentially with police investigation in mind — can program into his phone.

This inclusion is curious for a number of reasons. In both the Wurie and Riley cases, both of the searched cell phones are out-of-date in terms of security features. If the Court considers the Justice Department’s brief, it will have to differentiate between the specific cell phones used by the defendants and future mobile phone technology in regards to remote security. As learned last week during the Aereo oral arguments, the Justices are not the most tech savvy people in government.

Also, cell phone kill switches are not a yet universal feature. Only Apple iPhones have a built-in feature in their latest operating system, but Motorola and other major manufacturers have voluntarily agreed to create their own kill switches for models after 2015. Because not everyone – criminals and noncriminals alike – has this function, the Justice Department hasn’t proved that the remote destruction of cell phone evidence is a widespread issue.

While the Justice Department’s argument is logical, their brief fails to mention that it puts them at odds with a variety of states and other levels of governments. Kill switches are generally seen as a good measure to help stop cell phone thefts, which costs customers $30 billion a year, according to Federal Communications Commission estimates. California’s State Senate rejected a mandatory kill switch bill, but New York and Minnesota are also considering their own legislation. On the national level, four Democrats in Congress proposed the Smartphone Theft Prevention Act, which also wants to give users the ability to remotely disable their phones.