Symposium: Inaugurating the digital Fourth Amendment
There’s a lot to love in Riley v. California, and privacy specialists will be celebrating this one for a long time. In a nearly unanimous opinion packed with references to gigabytes, apps, and the cloud, Chief Justice John Roberts proved that the Justices get it. They get that digital technologies are different from anything our culture has seen before. They get that people are using those technologies in a million dynamic ways that were unimaginable a generation ago. And they get that, in at least some contexts, the Old Rules need to change. In 1973, United States v. Robinson established that police have automatic, categorical authority search the entire person of an arrestee. Today, that rule doesn’t apply to cell phones. Instead, police must get a warrant. But that’s just the tip of the iceberg. Riley will be remembered as the inauguration of a new era of Fourth Amendment doctrine not so much because of its specific holding, but rather because its reasoning clears the way for even more doctrinal change.
Consistent with its public relations mission, Riley goes out of its way to mute criticism that the Court has received in recent Fourth Amendment cases. For instance, there’s a conspicuous (and, on the merits, hugely significant) quotation from Justice Sotomayor’s heralded concurrence in United States v. Jones, which discussed a host of new issues posed by digital surveillance. The majority opinion in Jones chose to rule based only on a historically grounded trespass theory. But, in Riley, every member of the Jones majority signs onto Justice Sotomayor’s warning about the privacy implications of prolonged GPS surveillance: “GPS monitoring generates a precise, comprehensive record of a person’s public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations.” That passage is bound to figure prominently in ongoing Fourth Amendment litigation on third-party disclosures of cell tower data. Elsewhere in his opinion, the Chief Justice quoted from Maryland v. King, the bruising five-to-four decision that allowed for warrantless DNA swabs upon arrest. But, surprisingly, the Court cites King as the exception that proved the warrant rule: “Not every search,” Riley tells us, “‘is acceptable solely because a person is in custody.’” While acknowledging the prevalence and even predominance of warrantless searches, Riley makes clear that the warrant rule is alive and well. Indeed, Riley exalts warrants more than any other decision of the Roberts Court.
Riley is likely to act as a catalyst for additional rulings in this area, because it appears to reduce the normal rigidity of vertical stare decisis. In recent years, lower courts across the country have taken sides not just on the issue of how to handle cell phones, but also on the related issue of how closely to hew to old Fourth Amendment rules in cases involving new technologies. In Riley, the California Supreme Court applied Robinson according to its broad terms – and was reversed. In United States v. Wurie, by contrast, the First Circuit looked beyond Robinson’s stated holding to consider its purposes and premises. Based on that analysis, the First Circuit essentially fashioned a new rule that accounted for new technologies – and, for that act of independent thinking, was not only affirmed, but favorably quoted. Riley’s substantive analysis supports that lesson. Had the Court overruled Robinson insofar as it applied to cellphones, the message to lower courts would have been that the California Supreme Court got it right. Instead, Riley rejects “a mechanical application of Robinson” and “decline[s] to extend Robinson to data on cell phones,” thereby suggesting that the California Supreme Court shouldn’t have felt bound by it. So, when it comes to new technologies, lower courts are on notice that they shouldn’t too quickly follow broad statements from pre-digital opinions, even if those opinions emanated from the Supreme Court itself. Rather, in the special context of new technologies and the Fourth Amendment, lower courts may now feel free to read Supreme Court precedents narrowly. The result will likely be additional circuit splits warranting the Court’s attention. In that sense, Riley is the privacy gift that keeps on giving.
Riley is worse news for the government. In prior Fourth Amendment cases involving new technology, the government has done well in the Roberts Court. In Jones, the government lost, but on a historically grounded trespass theory whose ramifications were unclear. And in King, the government won outright, albeit based in part on certain limitations that the government itself endorsed. By contrast, Riley walks through each of the alternative arguments put forward by the government (that is, California and the United States) and emphatically rejects every one of them. Take the argument based on Arizona v. Gant, which held in part that officers can search a car incident to arrest when they have reason to believe that the vehicle contains evidence of the crime of arrest. According to the government, the Court’s reasoning in Gant suggested that the police should at least be able to search the digital contents of cell phones to find evidence of the crime of arrest. And some prominent commentators endorsed that Gant-based rule as a viable solution. In Riley, however, the Court was content to limit Gant to automobiles, period. The impression is that Gant isn’t a font for additional search authorities, so much as a limited aberration.
More significantly, Riley casts a pall over the government’s most aggressive arguments in cases involving computer searches. As Riley emphasizes, cell phones are basically just small computers. Taking that framing seriously, the government argued that it should at least be able to conduct limited computer searches incident to arrest in order to find specified types of information. Options included information related to the offense of arrest (à la Gant) and information of the type that could be carried on the person in a physical format (like photographs). Riley rejects those proposals in part because they would “impose few meaningful constraints on officers.” “The proposed categories,” the Court explains, “would sweep in a great deal of information, and officers would not always be able to discern in advance what information would be found where.” Put another way, the lack of manageable standards means that searching part of a computer is tantamount to searching the entire computer. For the government, this reasoning is alarming. When the government searches hard drives, it often runs the risk of encountering information not of the type being searched for. In some cases, the government has argued that it should be able to take advantage of any incriminating evidence it finds under those circumstances – whether the evidence was anticipated in a warrant or not. Riley demonstrates that such an approach has a huge potential to impinge on privacy. That conclusion takes on added significance in light of Riley’s balancing-oriented approach to resolving digital search cases. Because relevant historical sources don’t yield “precise guidance” in this area, Riley calls for balancing, “on the one hand, the degree to which [a warrantless search] intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.” This is a formula for cutting back on broad grants of search authority, given the massive intrusions attending most computer searches. If California and the United States advanced their alternative arguments in the hope of mitigating the damage of losing, they failed. Instead, Riley will become a springboard for new challenges to broad computer searches, even when the police have obtained a warrant.
Then there’s the question of what Riley means for non-digital searches, such as searches of diaries. Here, the story is more mixed. At one point, amidst its lengthy discussion of how contemporary cellphones are unlike anything that ever existed before, Riley comes close to equating computers with an array of old-school means of storing information. As the Court puts it, “cell phones” today aren’t mainly phones at all. Therefore, they “could just as easily be called … rolodexes, calendars[,] libraries, diaries[,] maps, or newspapers.” What’s more, the Court’s balancing of interests would seem to dictate that the government can’t read diaries and similar materials without a warrant. Unlike with cell phones, there’s no risk whatsoever that written words will summon confederates who might harm officers, or receive coded signals to self-destruct. So the government’s side of the interest-balancing ledger seems completely empty. On the other hand, allowing the police to peruse a diary is bound to impose at least some significant privacy cost, even if it doesn’t match the intrusion occasioned by a cellphone or house search. Finally, there’s a manageable pro-defendant rule to be had here: police can check written materials for blades and the like, but they can’t read them.
All this strongly suggests that police shouldn’t be allowed to read materials found on the arrestee. Reasonably enough, however, Riley doesn’t take a firm stand on this question, which wasn’t presented. Instead, Riley cites lower-court decisions upholding searches of “personal items,” including a “billfold and address book.” To the extent that these cases are defensible, Riley insinuates that they depend on the arrestee’s reduced expectation of privacy. If you’re already getting arrested, then watching police page through your diary would be only a “minor additional intrusion.” This tentative reasoning echoes the Court’s divisive analysis in King (the DNA mouth-swab case) and Florence v. Board of Freeholders (the strip-search case), which also emphasized the diminished privacy expectations attending arrest. On this front, Riley reflects older lines of doctrine and isn’t quite as pro-privacy as it could have been. Still, only Justice Alito’s solo concurrence actually concluded that diaries are readable incident to arrest.
New technologies, like other new circumstances, force courts to wonder whether old rules are still worth following. Riley is reassuring proof that the Roberts Court is committed to that venture. While Justice Alito’s concurrence included a helpful reminder that legislatures still have a valuable role to play in this area, the Court – by a unanimous vote – won’t wait.
[Disclosure: The law firm of Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, was among the counsel to the petitioner in Florence. However, the author of this post is not affiliated with the firm.]