A Victory For Digital Privacy, Ctd

Jun 26 2014 @ 2:20pm

Orin Kerr predicts that yesterday’s ruling in Riley will have a broad impact on how the justice system treats our digital lives:

As readers of the blog know, the lower courts are struggling to apply old principles of the Fourth Amendment to the new facts of computers. I think Riley can be fairly read as saying that computers are a game-changer: We’re now in a “digital age,” and quantity of data and the “qualitatively different” nature of at least some digital records changes how the Fourth Amendment should apply.

That’s a big deal. It means that Riley may just be the tip of the iceberg. Computers have now generated a very different rule for searches incident to arrest: The police have to follow one rule for physical evidence and a different rule for digital evidence. If that’s true for searches incident to arrest, what other rules are also going to change?

Fernholz is on the same page:

In all likelihood, this decision won’t mean mobile phone searches are actually off-limits for cops—it won’t be hard for the police to convince a judge that a phone search is necessary if they have suspicion of a real crime. But it will mean that being detained for a minor crime won’t end with a fishing expedition into practically every aspect of your life. It’s a very modern clarification of the right guaranteed by the US founding fathers: To be secured against unreasonable searches of your person, house, papers—and iChat logs.

On the other hand, Eric Posner questions whether the court is the right place to make such culturally significant decisions:

I sympathize a bit with Alito, who in a separate opinion wonders why the Supreme Court should decide how important the privacy interest is in one’s cellphone contents. Isn’t this a better question for legislatures? …

How exactly does this court know how significant the privacy interest is? Many people don’t care much about their privacy; others do. Maybe those who care a lot don’t put personal information on their cellphones, or they ensure that it is encrypted or otherwise protected. Or they put information on their cellphones that you or I might consider personal but they don’t. Indeed, technology is not the only thing in flux here; so are social norms and personal beliefs about what information it is appropriate to share and what information should be kept to oneself.

To which Lithwick responds:

But the court didn’t have to calibrate a perfectly coherent zone of privacy; it merely had to do what it did, which is say, “Not in here, not without a warrant.” I am not sure that is based solely on how the nine use their own phones, by the way, especially given that Breyer is probably still trying to hack into his as we type. I think it’s based on a reasonable conclusion that we are entitled to an expectation of privacy in devices that are, as Roberts writes, “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.”

Jim Harper, who co-wrote Cato’s amicus brief, wishes the court had gone further in defining how key Fourth Amendment terms apply to our phones:

Did the Court go all the way our way? Certainly not. The Court didn’t do the simplest thing we invited, which was to state explicitly that a cell phone is an “effect” under the Fourth Amendment. (It’s essential to the holding that a cell phone is an item protected by the Fourth Amendment, but the Court should have said so to model behavior for lower courts.) The Court also did not distinguish cleanly between “search” and “seizure,” which is a distinction that courts will have to navigate if they are to get right the harder Fourth-Amendment-and-technology cases.

Still, Damon Root calls Riley “a stinging benchslap for the Obama administration and the other parties who lined up in favor of aggressive law enforcement tactics”:

For example, according to one legal filing submitted by the Obama administration, “Although cell phones can contain a great deal of personal information, so can many other items that officers have long had authority to search, and the search of a cell phone is no more intrusive than other actions that the police may take once a person has been lawfully arrested.” Translation: The Fourth Amendment should not apply.

But the problem with that boundless view of government power is that it would give the police free rein to access the emails, texts, photos, videos, and GPS tracking data of each and every person that has been placed under arrest, including those persons arrested for minor crimes such as jaywalking.

And Walter Dellinger interprets the ruling to mean that “the court may no longer be the head cheerleader for the war on drugs”:

The Supreme Court decisions from the 1970s that gave the green light to oppressive police investigative practices were to a large degree driven by the perceived need to suppress the supply of drugs. Consider for example United States v. Robinson (1973), which allowed law enforcement officers to search without a warrant a crumpled cigarette package (that turned out to have drugs). Decided at the height of the national drug frenzy, cases like Robinson were the handmaiden of mass arrests. Because it would have been too costly and complicated to obtain warrants every time the police did of a sweep of low level street dealers, intrusive searches without warrants were a key part of drug control efforts that rely on mass arrests.

In today’s Riley decision, the court notes, almost as an aside: “We cannot deny that our decision today will have an impact on the ability of law enforcement to combat crime”—a fact that does not seem all that troubling to the justices, at least not as troubling as it would have been in prior decades.