Thanks to cop shows like “Law & Order,” we all know the Miranda warning:
You have the right to remain silent. Anything that you say or do can be used against you. You have the right to an attorney. If you cannot afford one, one will be provided to you. Do you understand these rights as I have read them to you?
This simple caution is now so ingrained in American culture that even those who are otherwise constitutionally illiterate know they have these rights when dealing with the police. That’s a good thing, but it’s no longer enough.
If the average American is mistakenly placed under arrest today, his cell phone poses at least as great a danger to his freedom as his mouth. It is never wise to talk to the police, no matter how innocent you may be (see the definitive explanation of this point from law professor James Duane here), but even if you say nothing beyond “I’d like a lawyer,” your phone can do an awful lot of talking for you. Its archive of your communications and even movements can give the cops more than enough information to build a convincing but mistaken case against the wrong person.
In 2014, the Supreme Court ruled unanimously in Riley v. California that the cops can’t search your phone while arresting you if they have neither your permission nor a warrant. A cell phone is a far more private (and informative) matter than something like a wallet, the court said, and checking an arrestee’s ID is not in the same category as rifling through a device that can easily contain as much information as a computer or a filing cabinet.
But here’s the thing: I’m betting most Americans don’t know that. I write about civil liberties issues for a living, and even I might begin to doubt my right to keep my cell phone private were I badgered by an officer to let him look at my phone during an arrest.
That’s where the idea for a digital Miranda warning comes in, and Ars Technica’s Cyrus Farivar has collaborated with legal experts to craft exactly that:
You have the right to remain silent. This right includes declining to provide information that does not require speaking, such as entering a passcode to unlock a digital device, like a smartphone. Anything that you say or do can be used against you. Any data retrieved from your device can also be used against you. You have the right to an attorney. If you cannot afford one, one will be provided to you. Do you understand these rights as I have read them to you?
This is an excellent proposal and one that should be implemented immediately. Absent a nationwide directive, as resulted from the Miranda v. Arizona case (which was a much narrower SCOTUS decision than you’d think, by the way), responsible police departments should take it upon themselves to voluntarily offer this expanded warning to people they arrest.
Yes, more informed people will be less likely to self-incriminate — including the guilty ones. But as the old legal saying goes, “better that ten guilty persons escape than that one innocent suffer.”
It is vital that Americans know their rights when interacting with law enforcement, and today that must include digital rights, too. I look forward to the day when the cops on “Law & Order” (because that show will clearly never end) rattle off an expanded Miranda warning that guards our passwords as much as our mouths.