Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple – get a warrant.
— Chief Justice John Roberts in Riley v California (US Supreme Court, June 2014).
The US Supreme Court has not been the most enlightened body when considering the rights and liberties of citizens in the digital age. Its Wednesday ruling in Riley v California and United States v Wurie bucked the trend, doing a good deal of dabbling with digital rights in a ruling that police must obtain a warrant in searching a suspect’s cell phone. In what seemed like a rush of judicial interpretation in the field of technology, the Supreme Court also handed down a decision in American Broadcasting Cos v Aereo, holding that the cloud-TV service Aereo could not retransmit broadcast television signals via the medium of the internet.
The argument by law enforcement authorities was traditional, honing in on such judicial decisions as United States v Robinson, 414 US 218 (1973). No operable distinction existed between the device on the person – in this case, a cell or smart phone, and the contents of the pocket (address books, litter, empty wrapping). In the dismissive tone of Chief Justice John Roberts’ opinion, “That is like saying a ride on horseback is materially indistinguishable from a flight to the moon.”
The decision by Roberts is a laundry list of applications that a modern phone can contain, be it apps that deal with a gambling addiction, those dealing with romance in life, or any other marked app for the moment. Indeed, the Chief Justice goes so far as to say that, “The phrase ‘there’s an app for that’ is now part of the popular lexicon.”
Further to that, such phones may have access to cloud storage, data retained on distant servers that would be taking any search outside the purview of anything on the physical person of the suspect.
The opinion dismisses the idea that searching a cell phone is tantamount to the physical interaction between the police and suspects, the traditional “pat down”. “Once a police officer has secured a phone and eliminated any potential physical threats, however, data on the phone can harm no one.”
Law enforcement officials have vented their frustration, feeling that the executive and its search protocols ought to be trusted and kept outside the scope of the Fourth Amendment. Thomas Zugibe, district attorney in Rockland County, NY, signed a friend-of-the-court brief arguing in favour of warrantless device searches as falling within the remit of the constitution. The grounds of objection are predictably shabby – the life of the police officer is being complicated by technology which “is making it easier and easier for criminals to do their trade”. The court, in its meddlesome way, had made “it harder for law enforcement to do theirs” (Wall Street Journal, June 25).
This has been far from the case. Till Riley, there were various decisions that favoured the reach of law enforcement to target various bits of data on the person. Smith v Maryland, a 1979 decision, held that the police did not need a warrant to install an electronic device programmed to record phone numbers dialled by the caller. In that case, it was a “pen register”, the sort of device that had the surveillance fraternity squealing with delight.
As Roberts forcefully noted, “Cell phones differ in both a quantitative and qualitative sense from other objects that might be kept on an arrestee’s person.” In truth, such devices were “minicomputers” incorporating the functions of “video players, rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps, or newspapers.”
The decision arguably opens the Court to considering, according to Jennifer Granick in Just Security (June 25), the application of the “mosaic theory” to data collection. Taken in isolation, shreds of data may say little. Taken together as a compact, the picture becomes crystal clear, a neat revelation. A cell phone, for instance, “collects in one place many different types of information – an address, a note, a prescription, a bank statement, a video – that reveal much more in combination than any isolated record.”
Privacy had to be considered in a more sophisticated light, and law enforcement officials had to yield to the chugging revolution of technology. But there was the smallest window that the decision might also force its way into affecting bulk collection by the National Security Agency of metadata. Not only is the Smith precedent under potential attack, but the very basis of the surveillance state, directed by executive fiat. As Granick explains, the court’s reasoning shows that it “will not blithely analogize modern technology to old possessions.”
In the court’s words, such an “analogue test would launch courts on a difficult line-drawing expedition to determine which digital files are comparable to physical records. Is an e-mail equivalent to a letter? Is a voice mail equivalent to a phone message slip?” Such reasoning would muddy the waters, and was best ignored in favour of a firmer rule on protecting the data on digital devices. If in doubt, get a warrant.
With delicate side-stepping by the justices, the issue on NSA bulk collection will have to wait for another day. “Because the United States and California agree that these cases involve searches incident to arrest, these cases do not implicate the question whether the collection or inspection of aggregated digital information amounts to a search under other circumstances.”
Such reconsideration may well have to come sooner, rather than later, given the legal justifications by the FISA Court and the NSA regarding bulk collection under the FISA pen register provisions or Section 215.
The Supreme Court’s understanding in Riley was cogent, probably a reflection about the justices’ connection with technology members of the bench can understand. The response, however, in Aereo, may not have been as sound. Thus Nilay Patel, writing for Vox (June 26) suggests that, “because this technology isn’t actively working to make the lives of our Supreme Court justices better, they simply decided it was the same as old technology and decided to shut it down.” Such are the vagaries of the uneven match between law and technology. At least in Riley, the justices were not asleep at the sometimes squeaky judicial wheel.