The significance of Riley

June 25

I’ve been mulling over the Supreme Court’s new decision on cell phone searches, Riley v. California. Here are six insta-thoughts on its likely significance.

1) The Court’s opinion offers a major endorsement of treating computer searches differently than physical searches. Although the opinion is phrased primarily about “cell phones,” Chief Justice Roberts makes clear that “cell phones” are really just “minicomputers.” And if you take the reasoning of Riley to apply to other minicomputers and to electronic storage devices generally — which I think is the fairest reading of the opinion — then it means that lots of other applications of the Fourth Amendment to computers are now in play. As readers of the blog know, the lower courts are struggling to apply old principles of the Fourth Amendment to the new facts of computers. I think Riley can be fairly read as saying that computers are a game-changer: We’re now in a “digital age,” and quantity of data and the “qualitatively different” nature of at least some digital records changes how the Fourth Amendment should apply.

That’s a big deal. It means that Riley may just be the tip of the iceberg. Computers have now generated a very different rule for searches incident to arrest: The police have to follow one rule for physical evidence and a different rule for digital evidence. If that’s true for searches incident to arrest, what other rules are also going to change?

2) What to make of the unanimity of the decision? On one hand, it might signal that all the Justices are on board the “computers change everything” idea. It’s especially interesting if you pair it with Jones, the GPS case. Think about it: In the three argued cases on the application of the Fourth Amendment to new technology over the last five years — Jones, Riley, and Wurie — the defense won 27 votes and the government won zero. 27 to 0. With that said, the unanimity here may be a bit misleading. The unanimity could also reflect timing, at least in part. Riley and Wurie were argued on April 29th, so a draft majority opinion probably wasn’t circulated until late May. With all the opinions out by the end of June, there would have been a big time-crunch. That pressure sometimes leads to more of an appearance of unanimity than would exist if the Justices had more time to write separately.

3) Some have asked me if parts of the majority decision could be taken as hinting an endorsement of the mosaic theory. In a footnote, Roberts says that the mosaic theory is not implicated in the decision:

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.

With that said, there’s one paragraph that mosaic proponents will cite as hinting at pro-mosaic sympathies:

Although the data stored on a cell phone is distinguished from physical records by quantity alone, certain types of data are also qualitatively different. An Internet search and browsing history, for example, can be found on an Internet-enabled phone and could reveal an individual’s private interests or concerns—perhaps a search for certain symptoms of disease, coupled with frequent visits to WebMD. Data on a cell phone can also reveal where a person has been. Historic location information is a stand-ard feature on many smart phones and can reconstruct someone’s specific movements down to the minute, not only around town but also within a particular building. See United States v. Jones, 565 U. S. ___, ___ (2012) (SOTOMAYOR, J., concurring) (slip op., at 3) (“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.”).

But hold up — other parts of the opinion cut the other way. For example, consider the passage rejecting the “analogue search” test for digital storage devices, which would allow a warrantless cell phone search if it was the same kind of search that would have been allowed for a physical device:

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 voicemail equivalent to a phone message slip? It is not clear how officers could make these kinds of decisions before conducting a search, or how courts would apply the proposed rule after the fact. An analogue test would “keep defendants and judges guessing for years to come.” Sykes v. United States, 564 U. S. 1, ___ (2011) (SCALIA, J., dissenting) (slip op., at 7) (discussing the Court’s analogue test under the Armed Career Criminal Act).

The same is true for the mosaic theory; it is so unclear that even its proponents decline to say how it should apply to specific cases. So parts of Riley hint pro-mosaic and other parts hint the other way. I suppose there’s something for everyone if you look hard enough, but I would just take the Court at its word in Footnote 1: “these cases do not implicate the question whether the collection or inspection of aggregated digital information amounts to a search under other circumstances.”

4) I’m biased on this, and so not a great observer, but I read the majority opinion as adopting the basic methodology of equilibrium-adjustment. The majority expressly contrasts the significance of the old rule “prior to the digital age,” and shows how it would create very different results today in light of technological change and social practice: “Allowing the police to scrutinize [cell phone stored records] on a routine basis is quite different from allowing them to search a personal item or two in the occasional case [prior to the digital age].” The implication of the old rule is different than it was before most people carried around a powerful computer in their pockets:

In 1926, Learned Hand observed (in an opinion later quoted in Chimel) 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 which may incriminate him.” United States v. Kirschenblatt, 16 F. 2d 202, 203 (CA2). If his pockets contain a cell phone, however, that is no longer true. Indeed, a cell phone search would typically expose to the government far more than the most exhaustive search of a house: A phone not only contains in digital form many sensitive records previously found in the home; it also contains a broad array of private information never found in a home in any form—unless the phone is.

The rule has to change because the implications of the rule are now different: “The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought.”

5) Riley seems to hint that contents on remote servers are protected (the Warshak issue). The Court expresses special concern that allowing a cell phone search could accidentally allow a cloud search, too. That only makes sense as a concern if there is Fourth Amendment protection in stored contents in the cloud, too. And note how the Court talks about the cloud:

Cloud computing is the capacity of Internet-connected devices to display data stored on remote servers rather than on the device itself. Cell phone users often may not know whether particular information is stored on the device or in the cloud, and it generally makes little difference. See Brief for Electronic Privacy Information Center in No. 13–132, at 12–14, 20. Moreover, the same type of data may be stored locally on the device for one user and in the cloud for another.

If it “makes little difference” whether information is inside your pocket or on remote servers, and the contents in the pocket are obviously protected, it would be pretty shocking if the Court thought that the contents on remote servers aren’t protected, too.

6) My vote for the best line of the opinion is the bolded sentence below, on concerns that allowing a search of a cell phone could inadvertently allow a search of the cloud.

[T]he Government proposes that law enforcement agencies “develop protocols to address” concerns raised by cloud computing. Reply Brief in No. 13–212, pp. 14–15. Probably a good idea, but the Founders did not fight a revolution to gain the right to government agency protocols.

As Instapundit would say, “Heh.”

Orin Kerr is the Fred C. Stevenson Research Professor at The George Washington University Law School, where he has taught since 2001. He teaches and writes in the area of criminal procedure and computer crime law. Kerr is a former law clerk for Justice Anthony Kennedy at the U.S. Supreme Court. From 1998 to 2001, he was a Trial Attorney in the Computer Crime and Intellectual Property Section at the U.S. Department of Justice. In 2013, Chief Justice Roberts appointed Kerr to a 3-year term on the Advisory Committee for the Federal Rules of Criminal Procedure. You can follow him on Twitter @orinkerr.
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Jonathan H. Adler | June 25