A sweeping endorsement for digital privacy: Riley v. California

The Supreme Court’s decision today in Riley v. California can be thought of as “a sweeping endorsement of digital privacy” —  words used on the SCOTUSblog live stream when news of the decision first came out.  The statement is certainly accurate.  In a unanimous decision (with just one concurrence by Justice Alito), Chief Justice Roberts ruled that before police can search a cell phone after an arrest, they must first secure a warrant.  Roberts left open the possibility for exigent circumstances justifying a warrantless search, but described them as “extreme hypotheticals.” 

I have paid very close attention to this case, not just because I am writing a book on the Roberts Court and the Fourth Amendment, but because the case has forced the Court to address how the Fourth Amendment will be viewed in a digital world, after a forty-five year period of limiting individual rights in the name of crime control.  The Fourth Amendment, beginning with the Burger Court in the 1970s and 1980s, has been recast from one where the warrant requirement was the measuring stick, to one where the “touchstone” of Fourth Amendment analysis has become not a warrant but instead “reasonableness,” — a term that provides much wiggle room for providing discretion to police in the name of crime control. 

The cell phone case is not the first one to address questions of technology, although it is the logical sequel to the GPS surveillance decision, United States v. Jones, that the Court decided in 2012.   In Jones, the Court ruled that government could not use GPS to conduct surveillance of a vehicle without first obtaining a warrant. In that case, however, Justice Scalia relied on an old – previously discarded – theory of the Fourth Amendment claiming that an unreasonable search occurred when there was a physical trespass on a constitutionally protected area, one’s “person, home, papers, or effects.”    In the cell phone case, the Court never once mentions trespass.  Indeed, Scalia did not even mention it during oral argument.  Instead, the focus is on the doctrine of search incident to arrest.  Like Jones, all nine justices agree with the outcome – but in Jones, there was a 4-1-4 breakdown (Scalia writing for 4 justices, Sotomayor concurring; Alito writing for another 4, all agreeing with outcome, but not reasoning).  Here it is 8-1, with Alito concurring in part, and concurring with the judgment.  

One of the major “warrant exceptions” that Court has relied on, and on which police have used extensively in the war on drugs, is the doctrine of search incident to legal arrest.  What this means is that after an arrest an officer can search the person of the arrestee, and the area within his “immediate” control.  This is done for the two reasons of officer safety, and to prevent the destruction of evidence.  The Court’s 1969 ruling in Chimel v California set the original precedent; it was reinforced in the 1973 decision in United States v. Robinson, in which the arrest occurred in a vehicle.  While the Court departed from it in the 1980s, with its ruling from New York v Belton which permitted vehicle passenger compartment searches regardless of those two rationales, in 2009, the Court’s decision in Arizona v. Gant restored the Chimel and Robinson justifications, limiting vehicle searches, for the most part,to those instances when it was reasonable to believe further evidence of the crime of arrest would be found. 

In oral argument in Riley, the government encouraged the Court to extend the Gant rationale to cell phone searches, but the justices would have nothing to do with it.  Chief Justice Roberts, in an opinion which seemed to try to make his knowledge of contemporary technology clear (he even referred to the iOS 7.01 user manual — who knew there even was a user manual?), Roberts argued that cell phones are fundamentally different than searching a wallet or pocket.    He used powerful language that privacy advocates will quote for years to come. His words are worth quoting in full.   Roberts describes cell phones as 

“such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy. A smart phone of the sort taken from Riley was unheard of ten years ago; a significant majority of American adults now own such phones.” 

Moreover, the Court made it clear that

“Cell phones differ in both a quantitative and a qualitative sense from other objects that might be kept on an arrestee’s person. The term “cell phone” is itself misleading shorthand; many of these devices are in fact minicomputers that also happen to have the capacity to be used as a telephone. They could just as easily be called cameras, video players, rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps, or newspapers.” 

There are clear implications for privacy.    Roberts’ opinion focused on the storage capacity of phones. 

“The storage capacity of cell phones has several interrelated consequences for privacy. First, a cell phone collects in one place many distinct types of information—an address, a note, a prescription, a bank statement, a video—that reveal much more in combination than any isolated record. Second, a cell phone’s capacity allows even just one type of information to convey far more than previously possible. The sum of an individual’s private life can be reconstructed through a thousand photographs labeled with dates, locations, and descriptions; the same cannot be said of a photograph or two of loved ones tucked into a wallet. Third, the data on a phone can date back to the purchase of the phone, or even earlier. A person might carry in his pocket a slip of paper reminding him to call Mr. Jones; he would not carry a record of all his communications with Mr. Jones for the past several months, as would routinely be kept on a phone.” 

The use of cell phones — smartphones really – is pervasive. 

Finally, there is an element of pervasiveness that characterizes cell phones but not physical records. Prior to the digital age, people did not typically carry a cache of sensitive personal information with them as they went about their day. Now it is the person who is not carrying a cell phone, with all that it contains, who is the exception. According to one poll, nearly three-quarters of smart phone users report being within five feet of their phones most of the time, with 12% admitting that they even use their phones in the shower. ”

In his opinion, the Chief Justice rejected the government’s arguments that there were officer safety concerns, and largely swept aside concerns about the ability for a third party to remotely “wipe” a phone, by suggesting that police could seize the phone, and put it in a “Farady” bag (an aluminun baggie designed to prevent the transmission of digital signals, turn off the phone, or remove the battery.    He suggested that the concerns raised were mostly anecdotal.  

The Court does not over-rule the “third party doctrine” of Smith v. Maryland, the 1979 case which permitted searches of a “pen register” – a list of phone calls made, but distinguished it, by suggesting that call logs provide more information than just phone numbers.   There is certainly room for this to be further visited.  

The Court also never once acknowledges the “reasonable expectation of privacy” standard that has been the primary focus of Court decisions involving privacy issues since Katz v. U.S. was decided in 1967.    It is clearly implied that there is an expectation of privacy in the contents of one’s cell phone that society is willing to recognize as legitimate,” but the fact that the Court NEVER mentions the standard is telling.  It suggests efforts to distance itself from Katz, something Scalia has been pushing for for years.    Of course, the Court also ignores Justice Scalia’s misguided “trespass” doctrine.  Whether that will be just a blip on the jurisprudential landscape remains to be seen. 

Justice Alito’s brief concurrence questions why it should be the Court’s job to regulate these issues, and suggests Congress should be the entity to regulate police and cell phones, just as it passed legislation dealing with wiretapping after the Katz decision.  He also challenges the majority’s reliance on search incident to arrest being based on only officer safety and the preservation of evidence.

The Court’s decision today truly is a sweeping victory for digital privacy.  It raises a large red flag for other issues such as the pervasive government sweeping of our digital lives by the National Security Agency, but those issues will wait for another day — and will be further complicated by the “national security” interests that would be put forth, and could shift the balance.  But today, advocates of the Fourth Amendment serving to protect individual privacy have much to be happy about. 

Steve Jobs would be proud.  

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