by Susan Freiwald, Professor of Law, University of San Francisco School of Law
The Supreme Court faced the specific question in Riley v. California as a matter of first impression – can police search a cell phone’s contents under the “incident to arrest” exception to the warrant requirement? But several courts have recently established a privacy-protective trend when they addressed the broader question – when does new technology render pre-digital precedents inapposite? The Supreme Court’s decision fits the trend in two key ways. First, the Court refused to credit the government’s explanation of the technological challenges it faced, and, instead, relied on its own sophisticated understanding. Second, the Court recognized the need to evaluate how new technology presents new answers to the inquiries behind the precedents. Like recent federal appellate cases, and unlike the Court’s decision in United States v. Jones, however, the Riley decision announced a bright line warrant requirement for searches of cell phones that recognized that more nuanced rules would grant law enforcement agents excessive discretion.
Skepticism towards the government’s arguments about new technology. In past cases, courts have generally deferred to government lawyers for information about the new technologies agents use and confront in their investigations. Ex parte litigation and the defense bar’s lack of access has exacerbated an information disadvantage. For example, the ACLU has recently tried to obtain more information about government use of stingray devices designed to mimic cell towers and obtain location and other personal information.
In recent cases, however, courts have brought a more jaundiced eye to the government’s claims. In Riley, the Supreme Court rejected the government’s claim that, without a ruling in its favor, agents would lose crucial information. Educated by technologists, amici, and academics and other researchers, Justice Roberts explained that agents could merely pop a cell phone in a Faraday bag to protect against remote wiping. (The opinion does merge encryption with passcode locking). Nonetheless, the Court’s knowledgeable skepticism reminds me of the Eleventh Circuit’s recent approach to cell site location data in United States v. Davis. In that case, the court dispensed with the government’s claim that such information is not as invasive as GPS tracking information. Because phones follow people inside as GPS trackers on their cars do not, the court found even more justification for a reasonable expectation of privacy in cell site location information. The courts’, and particularly the Supreme Court’s, increased technological savvy represents an important shift.
A refusal to “mechanically” extend pre-digital precedents to new technologies. In past cases, the government has argued that, even though cases involve new technology, they may be easily decided based on prior rules. The Riley opinion rejected the government’s argument that it could “mechanically” apply the incident-to-arrest exception merely because people carry cell phones the same way they carry cigarette cases. Instead, the Court reviewed the rationales of protecting officer safety and preserving evidence and determined that neither of them justified the massive privacy intrusion of searching a cell phone without a warrant (at least without exigent circumstances or some other like exception).
The Riley decision’s acknowledgment of what cyberprofs call the “cyberdifference” reminds me of the Supreme Court concurrences’ refusal in Jones to treat long-term GPS tracking surveillance as analogous to the use of bumper-beepers, despite the government’s claim that the pre-digital precedent governed. Similarly, in United States v. Warshak, the Sixth Circuit refused to apply the third party doctrine to email stored by a service provider; instead the court determined that users retain expectations of privacy when they store their email with an intermediary. Similarly, in Davis, the Eleventh Circuit found a reasonable expectation of privacy in cell site location data, notwithstanding the third party rule and notwithstanding that location information has not previously been viewed as the contents of communications. The Eleventh Circuit effectively rejected a rule that non-contents information lacks Fourth Amendment protection.
The Court’s rejection of prior precedents forged in a pre-digital context bodes well for its future cabining of the third party rule and its related acceptance of the need to recognize constitutional protection for metadata.
A recognition of the need for bright line rules. In the Riley case, the high court considered and rejected several proposals the government offered for a fact-specific approach to determining the need for a warrant before searching a cell phone incident to arrest. The Court’s recognition that only a warrant requirement (with exceptions for exigencies) would sufficiently cabin law enforcement discretion recalls the similar holdings of Warshak and Davis. It contrasts, however, with Jones, which neither required a warrant explicitly (the Court left that question open), nor offered a clear test (from the concurrences) for non-trespassory searches. Perhaps Riley reflects the Court’s recognition of the wisdom of the appellate courts.