Symposium: The Court starts to catch up with technology
Mason C. Clutter is the National Security and Privacy Counsel at the National Association of Criminal Defense Lawyers
Some thought the Supreme Court in Riley v. California and United States v. Wurie, the two cellphone searches incident to arrest cases this Term, would split the baby. Just the difference between the technologies at issue – a new age smartphone versus an old fashioned flip phone – suggested different privacy interests based on different technologies. And, the government’s continual assertion that officer safety and even national security could be at stake suggested that the Court may allow officers to search cell phones incident to arrest to prevent bombs from being detonated and officers being accosted by fellow gang members of the suspect. But, this was not so. In short, in a combined, unanimous decision on both cases, the Court said “get a warrant.”
Chief Justice Roberts delivered the opinion of the Court, which is surprising for some who listened to the oral arguments in these cases. The Chief Justice provides an eloquent and easy-to-understand explanation of how smartphone technology works, with an in-depth discussion of the privacy implications at stake. From location tracking to Internet browsing history, cloud computing, and dating apps, the Court outlines the many ways digital data stored on a smartphone differs from physical items that could be found in a suspect’s pockets. In response to the government’s argument that digital data stored on a cell phone is “materially indistinguishable” from similar physical items, the Court replies, “That is like saying a ride on horseback is materially indistinguishable from a flight to the moon.”
Needless to say, the Court’s opinion demonstrates that the Justices finally get it. We are in a digital age and the Fourth Amendment applies to digital papers and effects. Based on oral argument, however, it was not clear that many Justices other than Sotomayor, Kagan, and Ginsburg understood the privacy interests at stake in searches of cellphones incident to arrest. In fact, it was Roberts himself who questioned whether there was a difference between the police looking at a driver’s license or a cellphone call log upon arrest.
One cannot be sure if the Justices’ understanding was enhanced by the many amicus briefs filed by civil liberties and privacy groups, or if the everyday understanding of how these technologies work by a tech-savvy generation of law clerks persuaded the Justices. Likely a combination of both, there is a clear understanding by this Court that while the papers and effects at stake today are “quantitatively and qualitatively” different than the papers and effects at stake at the Founding, they are entitled to the same constitutional protections. The Justices concede that “[p]rivacy comes at a cost” to the “ability of law enforcement to combat crime.” But, it is not that ability that the Constitution protects. It protects the privacy interests of all persons, including those accused of crimes. Plus, the police can still fight crime; they just need a warrant to search a cellphone, even incident to arrest.
While the government attempted to argue that a suspect’s expectation of privacy is reduced upon arrest, the Court counters that this “does not mean that the Fourth Amendment falls out of the picture entirely.” It is reassuring to hear the Court reaffirm this fact because recent cases, like Maryland v. King and Florence v. Board of Chosen Freeholders suggested that the Court may be moving in that direction. The cellphone cases establish that digital data is private and protected by the Fourth Amendment, but King and Florence hold that the body – by way of invasive strip searches and DNA – may not be. While Riley may prove to be one of the most significant Fourth Amendment cases of the digital age, the Court has a long way to go in understanding the privacy implications of other seizures and searches of private information. But today we celebrate the victory for individual data privacy rights.
For those who say, but what about officer safety and the potential destruction of evidence? Have no fear: the Supreme Court clearly laid out for law enforcement how to search a cellphone incident to arrest. While the Court found that digital data cannot be used as a weapon to harm officers and the risks of data destruction are more theoretical than actual today, the Court did acknowledge that officer safety is a real concern. “Law enforcement officers remain free to examine the physical aspects of a phone to ensure that it will not be used as a weapon—say, to determine whether there is a razor blade hidden between the phone and its case.” However, “[o]nce an officer has secured a phone and eliminated any potential physical threats,” absent exigent circumstances, like a ticking time bomb or abducted child, the officer must secure a warrant to search its contents. In order to prevent the unlikely event of data wiping from afar, the Court says that law enforcement can simply turn off the phone, or remove its battery, or place it in a cheap “sandwich bag made of aluminum foil.” This is a clear, bright-line rule that should be easy for law enforcement to follow.
Rather than further widen the existing “search incident to arrest” exception to the Fourth Amendment, the Court chose to rely on the tried and true, and limited, exigent circumstances exception. The Court notes that this exception covers the hypotheticals posed by the government, including an off-site accomplice intent on setting off a bomb, while also providing an added layer of judicial review to determine “whether an emergency justified a warrantless search in each particular case.” The “search incident to arrest” exception would merely require a legal arrest, without further court review of the facts and circumstances justifying the search. The Court’s exigent circumstances approach strikes the right balance between an individual’s privacy interests and the government’s interest in fighting crime.
Lower courts also must be aware of the significance of this opinion, not just for matters of law, but for matters of tech-awareness. No longer should it be the case that a magistrate defers to the assertions of the government that digital evidence is different and at immediate risk of being wiped. Magistrates and district court judges must take it upon themselves, as did the Supreme Court Justices, to understand the nature of the device, how it works, what type of private information is at risk of being exposed, and the actual risks – not just theoretical, worst-case scenario, representations of the government – to officer safety and destruction of evidence. The Riley opinion will serve as a good treatise on cellphones, but judges must not be afraid of technology and must educate themselves in order to be effective checks on government power when it comes to other forms of technology.
Also, the Riley decision is a treasure trove of legal and factual arguments for criminal defense lawyers. One cannot overlook the one-liners that so succinctly summarize the issue, like the horse and moon comment or the line that demonstrates just how engrained cell phone technology is in our society. Roberts describes modern 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.” While silly, this observation shows how dependent individuals are on technology in order to function in modern-day society, dispelling the myth that one waives his or her expectation of privacy in using such devices.
Similarly, the Court’s dismissal of the government’s reliance on Smith v. Maryland to support its argument that it “should always be able to search a phone’s call log” is quite significant. While reluctant to go into too much detail about why the search of Wurie’s call log is a Fourth Amendment search and the use of a pen register directed at a landline is not, the Court did say that “call logs typically contain more information than just phone numbers.” For instance, “they include any identifying information that an individual might add, such as the label ‘my house’ in Wurie’s case.” Given the recent outrage over broad government surveillance programs that collect call log-like information without a warrant, this very short mention of Smith by the Court at this time is remarkable. It also brings to mind Justice Sotomayor’s concurring opinion in United States v. Jones, the GPS tracking case, in which she suggests that the third-party doctrine, i.e., Smith v. Maryland, “is ill-suited to the digital age.”
Finally, Justice Alito’s second call to Congress to legislate in this area, first seen in Jones, while interesting, is not as outcome determinative as he may suggest. The Constitution is the floor, not the ceiling of our rights. Congress is welcome to legislate and provide more protection for digital privacy than what the Constitution requires, but not less. Justice Alito says “it would be very unfortunate if privacy protection in the 21st century were left primarily to the federal courts using the blunt instrument of the Fourth Amendment.” Instead, he suggests that legislatures are better suited to addressing the intersection of technology and privacy. This may well be the case from a policy perspective, but Riley makes clear to Congress, the judiciary, and the executive branch alike that the Fourth Amendment must not be overlooked in the digital age. And because of this holding, all of us with a cellphone can breathe a little sigh of relief that our individual privacy interests in our associations, writings, location, affairs of the heart, and health will remain just that – private.