Imagine this: You lost your phone, or had it stolen. Would you be comfortable with a police officer who picked it up rummaging through the phone’s contents without any authorization or oversight, thinking you had abandoned it? We’ll hazard a guess: hell no, and for good reason.

Our cell phones and similar digital devices open a window into our entire lives, from messages we send in confidence to friends and family, to intimate photographs, to financial records, to comprehensive information about our movements, habits, and beliefs. Some of this information is intensely private in its own right; in combination, it can disclose virtually everything about a modern cell phone user.

If it seems like common sense that law enforcement shouldn’t have unfettered access to this information whenever it finds a phone left unattended, you’ll be troubled by an argument that government lawyers are advancing in a pending case before the Ninth Circuit Court of Appeals, United States v. Hunt. In Hunt, the government claims it does not need a warrant to search a phone that it deems to have been abandoned by its owner because, in ditching the phone, the owner loses any reasonable expectation of privacy in all its contents. As a basis for this claim, the government cites an exception to the Fourth Amendment’s warrant requirement that applies to searches of abandoned property. But that rule was developed years ago in the context of property that is categorially different, and much less revealing, than the reams of diverse and highly sensitive information that law enforcement can access by searching our digital devices.

The Supreme Court has cautioned against uncritically extending pre-digital doctrines to modern technologies, like cell phones, that gather in one place so many of the privacies of life. In a friend-of-the-court brief in Hunt, the ACLU and our coalition partners urge the Ninth Circuit to heed this call, and hold that even if the physical device may properly be considered abandoned, the myriad records that reside on a cell phone remain subject to full constitutional protection. Police should have to get a warrant before searching the data on a phone they find separated from its owner.

As the Supreme Court recognized more than 10 years ago, when the storage capacity of the median cell phone was a great deal less than it is today, advances in digital technology threaten to erode our privacy against government intrusion if courts apply to the troves of information on a cell phone the same rule they would use to analyze a search of a cigarette pack. In a case called Riley v. California, the Supreme Court held that even though police may warrantlessly search items in a suspect’s pockets during arrest to avoid the destruction of evidence or identify danger to the arresting officers, a warrantless inspection of the information on an arrestee’s phone went too far. Why? Because phones, “[w]ith all they may contain and all they may reveal,” are different.

Here too, the information on a cell phone is qualitatively and quantitatively unlike the items that underpin precedents permitting warrantless searches of abandoned property. The most recent of those precedents was decided in 1988, long before cell phones became a “pervasive and insistent part of daily life.” In case you’re keeping score, 1988 was the year Motorola debuted its first “bag phone,” an early transportable telephone the size of a briefcase that needed to be lugged around with a separate battery and transceiver. In that case, the Supreme Court held that people lose their legal privacy in items, like curbside trash, that they knowingly and voluntarily leave out for any member of the public to see. But when you fail to reclaim a lost or abandoned phone, do you knowingly and voluntarily renounce all of your data, too? Our brief argues that the Ninth Circuit should not use the same reasoning that has historically applied to garbage left out for collection and items discarded in a hotel wastepaper basket after check-out to impute to a cell phone’s owner an intent to give up all the revealing information on their device, just because it was left behind.

The immense storage capacity of modern cell phones allows people to carry in their palm a volume and variety of private information that is genuinely unprecedented in cases concerning searches of abandoned property. Our cell phones provide access to information comparable in quantity and breadth to what police might glean from a thorough search of a house. Unlike a house, though, a cell phone is relatively easy to lose. You carry it with you almost all the time. It can fall between seat cushions or slip out of a loose pocket. You might leave it at the check-out desk after making a purchase or forget it on the bus as you hasten to make your stop. Even if you eventually give up looking for the device, thereby “abandoning” it, this doesn’t evince any subjective intent to relinquish to whoever might pick it up all the information the phone can store or access through the internet.

An additional reason that the privacy of the information on a cell phone shouldn’t hinge on a person’s ongoing possession of their device is that you can still access and control much of the data on your phone independently of the device itself. While modern cell phones store extraordinary and growing amounts of data locally, a lot of this information resides also on remote servers — think of the untold messages, contacts, notes, and images you may have backed up on iCloud or its equivalents. If you have access to a computer or tablet, all this information remains yours to view, edit, and delete whether or not your phone is handy. Trade in your cell phone, and you can seamlessly download this information onto a new device, reviewing voicemail messages and carrying on existing conversations in text without interruption. In this sense, a cell phone is more properly analogized to a house key than a house, something we use to access vast amounts of information that’s largely stored elsewhere. It would be absurd to suggest that a person intends to open up their house for unrestrained searches by police whenever they drop their house key. Yet this is essentially the position the government in the Hunt case argued, successfully, in the trial court: Because the defendant discarded his phone, any piece of information stored on that phone was fair game, regardless of whether it was backed up.

The Ninth Circuit has an opportunity in Hunt to correct the trial court’s error and clarify that the rule governing police searches of the information on a lost or abandoned cell phone does not defy common-sense intuitions about what information we mean to give up when we lose track of our devices. The information on your cell phone is highly private and revealing. If the police want authority to review it, the Constitution requires of them something simple — get a warrant.

Executive Director Anthony D. Romero spoke to graduates at the Colin Powell School for Civic and Global Leadership. He stressed the critical need to protect free speech on college campuses. He calls on universities to uphold the principles of open debate and academic freedom, while also prioritizing the safety and well-being of students from discrimination and violence. Romero inspires graduates to seize leadership opportunities with bravery and compassion, recognizing their potential to make a positive impact on the world.

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When I was coming up here, it felt like I was coming home. I spent my early childhood not far from here, in the Castle Hill projects of the Bronx. Google maps says it’s only six miles from here, but it feels like worlds away. After the Bronx, we moved out to New Jersey, and I came back to New York after law school. I’ve now spent most of my adult life here in New York City. So, as a proud New Yorker – a proud Nuyorican – it is a special honor to be asked to speak at an institution woven so thoroughly and wonderfully into the fabric of the greatest city on earth.

As graduates of the Colin Powell School for Civic and Global Leadership, you have chosen to hone your leadership skills in a world where it is easier to retreat than to lead. At a time when it’s easier to give up and climb into a cocoon where the internet delivers your food, your clothes, and your opinions to your door. But thank God you chose a different path – as leadership has never been more important than it is now. You have decided to become a part of something bigger – to fight for the changes this nation and this world so desperately need. And I am grateful that you’ve chosen this path.

Having made the journey from public housing to this commencement podium, I feel joyful as I look out over a crowd of young people about to embark on your own journey. Standing here at your graduation, I can’t help but recall my own. With my Papi, Mami, my sister. All dressed in our Sunday best. Over the years, my heritage as a proud Puerto Rican was a source of great strength for me. It shaped my upbringing and continues to inform my worldview to this day. Looking out at this diverse sea of students, I suspect many of your ancestors may not have arrived on the Mayflower either. But all of you – each and every single one of you – earned your place to be here. And for many of you in the Class of 2024 – just like me and my family – you’ve had to overcome extraordinary odds to reach this moment.

I’m sure that somewhere in this class, I am looking at the next Felix Frankfurter, a City College graduate who became one of the greatest Supreme Court Justices ever to serve on the Court. Or the next Faith Ringgold, the brilliant artist and activist for gender equity and racial justice. Or the next Herb Sandler, a titan of industry who would ultimately give away a significant portion of his wealth to organizations and causes championing free speech, civil rights and social justice. Or, of course, the next Colin Powell, who broke racial barriers throughout his career and served his country for decades in military and civilian life.

You have accomplished a great deal and you should be proud – real proud. But let’s also remember to give credit to folks who helped you along the way. Your friends, of course. Your professors and administrators at City College. And the people who sacrificed to provide for you. The people who worked overtime to pay for tuition. The people who kept immaculate homes you came back to. The people who cooked you your meals. Who put a roof over your head. The people who had dreams for you. The people who pushed you. Believed in you. Hugged you. Picked you up when you fell down. The people who taught you how to walk. Say your first words. The people who taught you how to read. The people who showed you the meaning of the word LOVE. Of course, I am talking about your families. Your loved ones.

And graduates, you can feel real proud that you’re in that cap and gown …. that you’re about to walk across this stage – styling your way as you get your diploma. But you know that that diploma is as much theirs as it is yours. So why don’t you, the graduates, get on your feet and join me in giving the moms and dads, tías and tíos, grandmeres, dadis, bubbies, nanas, abuelas and countless others, a round of applause for everything they have done to make this day happen. Thank you.

Since we are talking about people who supported us along the way, I’d like to say a few words about someone who chose to be part of my journey – my late friend and former mentor Herb Sandler, City College Class of 1951. Founder and CEO of Golden West Financial. Herb used what he learned here to make enough money in banking that he could have built himself a castle and forgotten the problems faced by regular folks. But instead, he used what he learned at City College – and what he learned growing up poor on the Lower East side – to reach out and lift up others, as well.

Herb used his wealth to advance freedom and justice for everyone in America. Over the years, he gave me advice, support when I was struggling, and love when I needed it.

Herb was a true believer when it came to freedom of speech. He valued hearing divergent viewpoints – even when those viewpoints were critical of his industry, his bank or himself, personally. The press was sometimes unkind and even unfair to him, but Herb walked the walk when it came to free speech and a free press. He always believed that the answer to criticism, even if unfair or unfounded, was more speech – not less. He believed in open debate. Not censorship.

And he understood the centrality of real journalism to our democracy. With his philanthropy, he helped create Pro Publica, one of the most important institutions doing tough, nonpartisan reporting.

At the ACLU, we believe deeply that freedom of the press, freedom of speech, and academic freedom are all interconnected – that they’re all critically important to a functioning democracy. The ability to collect and impart information. The ability to discuss, debate and even hotly contest ideas. This is especially true for challenging ideas. Controversial ideas. Even repugnant ideas. We have zealously fought for the rights of people and groups of varied ideologies and beliefs to speak their minds. From gun owners and gun opponents; anti-LGBTQ organizations and pro- LGBTQ groups, Trump supporters and anti-Trump activists.

That’s why the ACLU fights so passionately to protect freedom of speech on college campuses right now when it is under attack.

As a domestic organization, the ACLU takes no position on wars between foreign countries. Yet we champion the right of students to express themselves. Whichever side they are on, whatever it is they believe.

Universities have a responsibility to ensure they maintain an environment in which all students can thrive and learn, but it’s not their job to protect students from hearing or engaging with upsetting or even hurtful ideas. In fact, it’s the universities’ job to prepare the leaders of tomorrow by exposing them to challenging worldviews, competing analyses. The leaders of tomorrow – you the Class of 2024 – need to be comfortable with the contestation of facts and the clash of ideologies.

Sometimes this is a hard line to walk. As passionately as students care, free speech is not a license for violence, property destruction, or physical intimidation or harassment of other students.

And as worried as administrators are, they must respect their students’ free speech rights and honor the long and important tradition of student campus activism.

That means that universities must not single out particular viewpoints for censorship, discipline, or disproportionate punishment. Whether students carry Palestinian, Israeli, or American flags, whether they are progressives, moderates, or conservatives, everyone must be accorded the same rights and accept the same responsibilities.

Universities have also an obligation to protect students from discriminatory harassment and violence. This year, too many universities have failed to meet this obligation to their Jewish, Muslim, Arab, Israeli, and Palestinian students.

At the same time, universities must not penalize students for expressing their views, even if they do so in deeply offensive terms.

They can announce and enforce reasonable content-neutral time, place, or manner policies on protesting activity, but they must leave ample room for students to express themselves.

Universities must also recognize that armed police on campus can endanger students – students of color in particular – and should be a measure of last resort.

And, finally, administrators must recognize that many of the pressures that are being placed on them are coming from politicians seeking to exploit campus tensions. Recognizing the source of these pressures is the first step, resisting them is the second.

Class of 2024, you are graduating at a challenging moment. No one would blame you if you wanted to reconsider your career in leadership and public service right now.

But I’m guessing that’s not going to happen. You are New York City tough. You are City College trained. You follow in the footsteps of Frankfurter, Reinggold, Sandler and Powell. You are meant for more. Much has been given to you and even greater things are expected from you.

Reach out and make a difference in peoples’ lives like your parents and professors did. Get off the beaten path, discover new communities. Respect and engage with people whose passions and opinions differ from your own. Speak your mind with courage and clarity, but also stand up for the right of your opponents to do the same. Become part of institutions that will magnify your voice and drive change.

Leadership isn’t ordained from above. It doesn’t come from yelling the loudest and it certainly isn’t possible from a self-imposed isolation chamber. It comes from your heart. From your mind. From the sweat of your brow. It comes from your communities; from the institutions you will populate and lead – and from the people whose lives you will touch.

Congratulations, graduates. And thank you in advance for what I know you are going to achieve. The world desperately needs the 2024 graduates of the Colin Powell School for Civic and Global Leadership. It will be thrilling to watch you rock it. And now, give yourselves the round of applause you so deeply deserve.

The outcome of the 2024 election will have a profound impact on access to abortion care in this country. Donald Trump’s allies have drawn up an agenda for a potential second presidential term, and they have made clear that if Trump is elected, he will dust off a 150-year-old federal statute called the Comstock Act to ban all abortions nationwide without any need for congressional action.

You read that right: Anti-abortion groups are peddling the radical theory that abortion could be banned in every state the moment he takes office.

And because anti-abortion politicians know that the American people oppose having our reproductive rights taken away, they’re trying to keep these plans under the radar until it’s too late—advising Trump and anti-abortion groups to keep quiet about their plan to impose a back-door abortion ban until after the election.

It’s long past time to shine a spotlight on this outrageous scheme, and why it’s just plain wrong.

The Comstock Act is an 1873 anti-obscenity law that, among other things, makes it a crime to mail anything that’s “indecent, filthy, or vile” or “intended for producing abortion.” Its namesake, Anthony Comstock, was an infamous Victorian-era anti-vice crusader who, as the Supreme Court has explained, “believed that anything remotely touching upon sex was obscene.” Comstock took credit for arresting thousands and driving at least 15 people to suicide through his anti-vice crusades.

Trump’s anti-abortion allies are trying to revive this zombie law, claiming that the Comstock Act is a dormant national abortion ban already on the books, just waiting to be enforced by a Trump Department of Justice. According to anti-abortion extremists, the Comstock Act makes it a crime to send or receive drugs or articles that are used in abortion care by mail or common carriers like UPS and FedEx. That interpretation of the law is wrong; it flies in the face of how courts and the Department of Justice have long interpreted the law. But if anti-abortion judges buy into this unfounded theory, it would effectively amount to a nationwide abortion ban because the medication and equipment used in abortion care are transported by mail and common carrier.

Abortion Criminal Defense Initiative

Source: American Civil Liberties Union

That likely means that abortion medication like mifepristone won’t even leave the factory. It means that companies that produce medical instruments, ultrasound machines, and other items used in abortion care couldn’t send them to abortion providers, and abortion providers couldn’t obtain the materials they need.

The plan to enforce the Comstock Act as an abortion ban is spelled out in the Heritage Foundation’s 180-Day Playbook, which details nearly 900 pages’ worth of “actions to be taken in the first 180 days of the new Administration.” The scheme is echoed by Jonathan Mitchell, Trump’s lawyer before the Supreme Court and the architect of Texas’s abortion bounty-hunter law, S.B. 8, who has made clear that a Trump Department of Justice would wield the Comstock Act as a backdoor abortion ban: “We don’t need [Congress to pass] a federal ban when we have Comstock on the books.”

Mitchell wants Trump and anti-abortion groups to “keep their mouths shut [on Comstock] as much as possible until the election.” Once in office, they plan to shut down abortion care nationwide without any need for congressional action.

To be clear, the argument that the Comstock Act is a dormant national abortion ban is legally wrong. That’s true for many reasons:

• First, starting in the early twentieth century, federal appellate courts reached a consensus that the Comstock Act only criminalizes sending and receiving materials to be used for otherwise unlawful abortion and contraception. The courts’ uniform conclusion was that the Act does not apply to drugs and articles sent and received for lawful abortion care. Importantly, courts reached this consensus well before the Supreme Court’s recognition of the constitutional right to contraception and abortion in Griswold v. Connecticut, and Roe v. Wade; the interpretation in no way turned on the existence of a constitutional right.

• Second, Congress was well aware of the court decisions that the Comstock Act doesn’t apply to lawful abortions. If Congress disagreed with the courts, it could have changed the law. Instead, Congress repeatedly reenacted the Comstock Act’s abortion provisions without modifying the language in response to the decisions. This means that Congress concurred with courts narrowing the scope of laws under the principle of congressional ratification. As the Supreme Court explained in Texas Department of Housing and Community Affairs v. Inclusive Communities Project, “[i]f a word or phrase has been … given a uniform interpretation by inferior courts …, a later version of that act perpetuating the wording is presumed to carry forward that interpretation.”

• Third and relatedly, the United States Postal Service, the agency that enforces the Comstock Act’s mailing restrictions, also concurred with the courts’ settled interpretation of the Act, and in 1970 informed Congress of its position. This timeline bolsters the conclusion that Congress accepted the appellate courts’ narrowing construction of the law.

• Fourth, the Department of Justice has publicly endorsed this interpretation of the Comstock Act in a December 2022 Office of Legal Counsel opinion. As the opinion explains, “[b]ased upon a longstanding judicial construction of the Comstock Act, which Congress ratified and USPS itself accepted,” the Comstock Act “does not prohibit the mailing, or the delivery or receipt by mail, of [abortion-inducing medications] where the sender lacks the intent that the recipient of the drugs will use them unlawfully.

In short, Trump’s allies’ argument that the Comstock Act can be enforced as a national abortion ban defies the settled determination by federal courts and the Justice Department that the law does not apply to lawful abortion care.

But we have seen anti-abortion extremists manipulate the law to ban abortion before. Roe was settled law for decades until a reconstituted Supreme Court reversed course in Dobbs and allowed states to ban abortion. And before Dobbs, Trump’s lawyer, Jonathan Mitchell, managed to impose an abortion ban in Texas that ought to have been struck down as unconstitutional, but that survived because of its manipulative bounty-hunter enforcement scheme.

So when Mitchell, who is on the short list to become Trump’s attorney general, endorses the dangerous Comstock scheme, the threat is deadly serious.