The Court’s unanimous decision in the cellphone privacy cases brought the Fourth Amendment into the digital age. The opinion by the Chief Justice rests on a simple truth: “Cell phones differ in both a quantitative and a qualitative sense from other objects that might be kept on an arrestee’s person.” The outcome follows logically from the text of the Fourth Amendment: “get a warrant” before searching a cell phone seized after an arrest. But that is only the starting point. The Court’s opinion is Riley v. California signals a Court more prepared to engage in the challenges of the digital age ahead.
The Court’s conclusion that data is different will affect not only digital search cases, but also the NSA’s bulk record collection program, access to cloud-based data, and the third-party doctrine. If the sheer volume of sensitive data stored on cellphones makes them different in kind than physical notes or address books, the same can be said about laptops, tablets, and servers. The Second Circuit has already held that officers must delete seized data that is not within the scope of a search warrant, and the reasoning in Riley supports that conclusion.
The Court identified several quantitative differences that underscore the decision to afford cell phones and other “digital containers” greater Fourth Amendment protection than their physical analogs. First, the “immense storage capacity” of cellphones allows “millions of pages of text, thousands of pictures, or hundreds of videos” to be stored and transported. Second, cellphones facilitate the collection and aggregation “in one place of many distinct types of information,” as well as data dating back “to the purchase of the phone, or even earlier.” Chief Justice Roberts explained, “there is an element of pervasiveness that characterizes cell phones but not physical records.”
But it was not just the quantity of records at issue in Riley that justified increased Fourth Amendment protection, it was also a qualitative difference in the digital records created and stored on cell phones. This data includes “private information never found in a home in any form.” The Eleventh Circuit reached a similar conclusion when it held recently that cellphone location records are protected by the Fourth Amendment.
The Court also notes that cellphones are not only a repository of sensitive personal data, they are also a portal to private records stored on remote servers. The physical container analogy used by the Government to justify the search-incident-to-arrest rule “crumbles entirely when a cell phone is used to access data located elsewhere, at the tap of a screen.” And this problem is compounded by the fact that “[c]ell phone users often may not know whether particular information is stored on the device or in the cloud, and it generally makes little difference. See Brief for Electronic Privacy Information Center in No. 13-132, at 12-14, 20.”
The Court rejected outright the government’s proposal that agencies “‘develop protocols to address’ concerns raised by cloud computing.” The Chief Justice stated plainly that “the Founders did not fight a revolution to gain the right to government agency protocols.” No doubt that sentence will be quoted in the current challenges to the NSA’s bulk collection program, which the government has defended based on its own, self-imposed privacy safeguards.
The Court’s analysis of the qualitative differences with data implies (1) that files stored in the cloud are deserving of the same (if not more) protection than physical “papers and effects,” and (2) that certain types of information are deserving of special protection. This should not be surprising, since we have already given heightened protection to one special category of information: the contents of communications. But in Riley the Court also explicitly rejected the government’s argument that call logs and other “metadata” are not deserving of Fourth Amendment protection.
The Court’s argument takes clear aim at the third-party rule – that “non-content” records like call logs, location data, and other metadata held by third parties can be collected by the government without a warrant. Like the data stored on cell phones, metadata can reveal “an individual’s private interests and concerns … can also reveal where a person has been” and there is an “element of pervasiveness” in the collection of all metadata records about an individual. Citing Justice Sotomayor’s concurrence in United States v. Jones, the GPS tracking case from the October Term 2011, the Chief Justice wrote:
Although the data stored on a cell phone is distinguished from physical records by quantity alone, certain types of data are also qualitatively different. An Internet search and browsing history, for example, can be found on an Internet-enabled phone and could reveal an individual’s private interests or concerns—perhaps a search for certain symptoms of disease, coupled with frequent visits to WebMD. Data on a cell phone can also reveal where a person has been. Historic location information is a standard feature on many smart phones and can reconstruct someone’s specific movements down to the minute, not only around town but also within a particular building.
This does not bode well for the government in the continued litigation over the NSA’s surveillance of Americans. In defending the NSA’s massive collection of the telephone records of all Americans, the government has argued that the collection of this metadata is “materially indistinguishable” from the collection of a single telephone number permitted by the Court in Smith v. Maryland, a case decided in the era of the rotary dial phone. Addressing the government’s claim that there is little difference between the search of cellphone data and the physical search the Court had previously allowed following an arrest, Roberts said, “That is like saying a ride on horseback is materially indistinguishable from a flight to the moon. Both are ways of getting from point A to point B, but little else justifies lumping them together.”
The Smith issue was not squarely presented because the government did not argue in either case that a search had not occurred. But Roberts did point to the distinguishing facts when that case is squarely presented: “Moreover, call logs typically contain more than just phone numbers; they include any identifying information that an individual might add, such as the label ‘my house’ in Wurie’s case.” A brief field trip to Bluffdale, Utah, the home of the NSA’s new massive computing facility, will no doubt reveal that we are long past the era of horseback and also the rotary phone.
The Riley decision also points to a reconceptualization of searches in the digital age that may move the home from the center of the Fourth Amendment universe. As the Court explained, “Indeed, a cell phone search would typically expose to the government far more than the most exhaustive search of a house: A phone not only contains in digital form many sensitive records previously found in the home; it also contains a broad array of private information never found in a home in any form unless the phone is.” Justice Kagan hinted at this result in her concurrence in Florida v Jardines, the dog sniff case from last Term. Joined by Justices Ginsburg and Sotomayor, Kagan imagined the search of a home from the front door using high-powered binoculars. The violation of privacy described is both the trespass on private property and the invasion of a reasonable expectation of privacy. And once the records of the home are digitized, uploaded, and stored on a small device that everyone carries, it is the person’s data and not the person’s domicile that may be paramount.
There is also in the Court’s Riley opinion a subtle but significant shout-out to Justice Brandeis and his famous dissent in Olmstead, the 1928 wiretap act. In that case, Brandeis rejected the Court’s limited application of the Fourth Amendment, which found no warrant requirement for the interception of telephone communication. Brandeis argued that the Constitution must be adapted to the demand of the modern age, suggesting that “[t]he progress of science in furnishing the Government with means of espionage is not likely to stop with wiretapping.” It was not just the tapping of the telephone that concerned Justice Brandeis. He also anticipated many of the modern investigative techniques, such as the phony cellphone towers known as “Stingray” and the government’s surreptitious access to private files stored on remote cloud servers. “Ways may someday be developed by which the Government, without removing papers from secret drawers, can reproduce them in court, and by which it will be enabled to expose to a jury the most intimate occurrences of the home.”
Chief Justice Roberts paid homage to Brandeis in Riley with this excerpt, discussed in the 1886 opinion Boyd v. United States:
Our cases have recognized that the Fourth Amendment was the founding generation’s response to the reviled “general warrants” and “writs of assistance” of the colonial era, which allowed British officers to rummage through homes in an unrestrained search for evidence of criminal activity. Opposition to such searches was in fact one of the driving forces behind the Revolution itself. In 1761, the patriot James Otis delivered a speech in Boston denouncing the use of writs of assistance. A young John Adams was there, and he would later write that “[e]very man of a crowded audience appeared to me to go away, as I did, ready to take arms against writs of assistance.”
Brandeis revered the Boyd decision, which held that a government subpoena for private business records violated both the Fourth and Fifth Amendment. He wrote in the Olmstead dissent that Boyd “will be remembered as long as civil liberty lives in the United States.”
It is no small matter that the Chief Justice pulled this reference from the Olmstead dissent. In words that also echoed the Olmstead dissent, Roberts concluded for a unanimous Court in Riley, “The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought.”
 Marc Rotenberg is President of the Electronic Privacy Information Center (EPIC) in Washington, DC. He teaches Information Privacy Law at Georgetown University Law Center. He has authored more than fifty amicus briefs on emerging privacy issues for federal and state courts. Alan Butler is EPIC Appellate Advocacy Counsel. Rotenberg and Butler co-authored the amicus brief for EPIC in Riley v. California.