SCOTUS’s new cell phone privacy ruling: What it means now and for the future

June 25, 2014

text message cell phoneAs we approach the end of June, we are treated to some of the most important decisions reviewed by the Supreme Court this term.  And usually, the high court saves the most anticipated decisions for last.  For example, there are four cases still awaiting a decision this term, nearly all of them, such as NLRB v. Noel Canning (dealing with recess appointments) and Burwell v. Hobby Lobby (the “contraception mandate” case).

As hotly anticipated those four remaining case may be, though, the Supreme Court just announced the ruling that will likely have the largest impact on the general population: Riley v. California.

You can read about the facts of the case in detail here or here, but the issue that was resolved by the Court in Riley was whether the police may, without a warrant, search digital information on a cell phone seized from an individual who has been arrested.

The Court ruled unanimously that the police may not do so under the Fourth Amendment.

Why would I assert that this case, which deals exclusively with the constitutional rights of arrestees, will likely have the biggest impact on the general population?

No, I’m not assuming that a majority of people will face arrest at some point in their lives.  Nevertheless, this principle, in and of itself, is significant: yes, in case you are ever arrested; but even if that never happens, the Supreme Court drew a figurative line in the sand for digital data.

As I’ll explain in greater detail in a minute, the Court effectively made digital data “off limits” in the context of what could be searched after an arrest.

In other words, the ruling treats digital data differently than it would the contents of a box or package that you may have on your person at the time of arrest.  The Court ruled that police need not search a phone to discover its contents, because, according to the Court, they should already know the contents of the phone: data.  And according to the Court, there is no risk “that leaving these items unread will endanger the arresting officers.”

It doesn’t matter if there may be evidence of the crime on the phone; it doesn’t even matter if the phone could be remotely wiped and law enforcement would forever lose the potentially valuable evidence (the Court stated that there were two different methods of preventing this that didn’t require searching through phone data: turning off the power or placing the phone in a signal-blocking “Faraday bag”).  It’s off limits without a warrant.

And here’s what so significant about that:

In the context of Fourth Amendment jurisprudence on searches incidents to arrest, the Court has seemingly made a deliberate choice to create a separate category for digital data.  The opinion made several references to how cell phones house “vast quantities of personal information” and were based on technology nearly inconceivable just a few decades ago, when two of the three primary cases on the issue were decided.

As such, even though 1973’s United States v. Robinson held that a search incident to a lawful arrest requires no additional justification, the Court held in Riley that this rule does not apply to digital data on cell phones.

That’s where we reach the part of this ruling that has the biggest impact on the general populace: the Court is beginning to carve out separate jurisprudence for digital data, recognizing the treasure trove of personal – and incriminating – information present on our electronic devices and vulnerable to police discovery.

I would be surprised if Riley v. California was not the beginning of a line of cases in Supreme Court digital privacy jurisprudence – a line that may sometime (soon) include a ruling on National Security Agency surveillance programs.  For privacy advocates, it’s very heartening that the Court came down unanimously and unequivocally on the side of privacy.

It seems quite likely that, given the Court’s broad respect for digital privacy enshrined in the ruling, that the government will have a difficult time going forward defending its data collection practices before the Supreme Court.