April 21, 2015

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“Privacy Comes at a Cost” – The U.S. Supreme Court’s Opinion in Riley v. California

In Riley v. California, a cell phone search-and-seizure opinion delivered by Chief Justice Roberts for a unanimous Court last month, the U.S. Supreme Court squarely recognized, and afforded special protection to, the ubiquitous use and storage of voluminous electronic data of many different types on mobile devices today. The opinion holds that, without a warrant, law enforcement generally may not search the content of a cell phone that has been taken from an arrested individual.

This landmark decision required a distinct departure from a trilogy of U.S. Supreme Court decisions permitting the search of property found on or near an arrestee under the “incident to an arrest” exception to the requirement of a warrant under Fourth Amendment jurisprudence. Those decisions were grounded in the interests of officer safety and preservation of evidence, a limited intrusion on individual privacy, and, in one decision, the unique characteristics of the arrest of an individual in an automobile.

Harking back to Learned Hand’s observation in 1926 that “it is ‘a totally different thing to search a man’s pockets and use against him what they contain, from ransacking his house for everything that may incriminate him,’” today’s Court observed that, “[i]f his pockets contain a cell phone, however, that is no longer true.”

The Court described information obtainable through the search of a cell phone (browsing histories, app selection and usage, etc.), which Riley’s brief had argued implicated First Amendment concerns for freedom of expression and freedom of association. The Court reasoned:

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 labelled with dates, locations, and descriptions; the same cannot be said off 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 Court made a point (in a footnote) of stating that this decision, which concerns only the question of a search incident to an arrest, does not address “the question whether the collection or inspection of aggregated digital information amounts to a search under other circumstances.”

Although the Court made clear that warrantless search of a cellphone may still be permissible under the “exigent circumstances” doctrine, the Court blunted conceded, “We cannot deny that our decision today will have an impact on the ability of law enforcement to combat crime. … Privacy comes at a cost.”

In part out of the Court’s “general preference to provide clear guidance” to law enforcement with straightforward rules, the Court declined to limit its holding with, for example, a rule that a cell phone search without a warrant would be permissible whenever the police officer has a reasonable belief that the cell phone has evidence of the crime for which the arrest has been made. As the Court noted, “[i]t would be a particularly inexperienced or unimaginative law enforcement officer who could not come up with several reasons to suppose evidence of just about any crime could be found on a cell phone.” There is at least a little bit of irony in that.