This
summer, the United States Supreme Court made a huge leap in upholding the
people’s
right to privacy under the Fourth
Amendment in the unanimous decision, Riley v. California. Riley
created a bright-line rule, curbing police discretion, that cell phones (not
only smart phones) are not reasonably subject to a search incident to arrest
unless an extenuating circumstance is present.
The
underlying rationale in Riley is that modern cell phones not only contain a
high quantity of data but also a high quality of data. First, the Court articulated that cell phones
contain vast amounts of information in many forms: a rolodex (or call log), a
photo album, a GPS, and financial statements; which are just a glimpse of the
expanse of information stored. A search
of such a small device may yield more information than even the most thorough
search of the home.
The
Court also discussed the quality of information that a cell phone might
yield. Chief Justice Roberts discussed
how the isolation of one of the above examples has so much more depth to it in
the digital age than its physical predecessor.
Take a photo book for example.
The police can potentially use a photo album on someone’s phone to recreate how
and when that person went about his or her day.
The picture data often contains location data and timestamps, which one
could never obtain from looking at a physical picture. Further, a person might have a wealth of
information, financial data for example, on his or her phone that would not
ever be present at the home.
Some
have criticized the Riley opinion as
a digital
restructuring of the Fourth Amendment. Viewed with a negative or positive lens, that
is just what Riley is; it is an effort to bring the law up to date with current
and emerging technology. Riley starts the law on a path of
playing catch up, but there is still a long road ahead. Although Riley
tackles a very specific matter, the implications that can be reached from the
rationale behind the opinion are vast.
Courts are left to navigate a murky area of the law that just became a
little darker with but one flashlight.
Courts are hesitant to extend the holding to other situations where the
rationale based on new characteristics of digital data reverberates to other
technologies. Justly so, many courts do
not want to make sweeping changes to existing law, and some courts are pushing
back against the Riley holding itself
by finding any way to distinguish their cases.
Some
courts hold compliance with Riley,
while others oppose it. The United
States District Court for the District of Nevada upheld the new Riley Precedent and suppressed the now
illegal search of a cell phone incident to arrest in United States v. Eisenhower.[1] However, the District Court for the District
of Maine found a workaround to the Riley
holding in United States v. Stile.[2] The police searched the defendant’s phone
incident to arrest. Factually, the
police did have a warrant, but the search occurred before the warrant was
procured. The court stated that, “the
officers inevitably would have searched the cellphone . . . and would have
discovered the text messages.” This
seems to be in direct conflict with the holding in Riley.
The
implications that Riley extends to other technology, just as rich in quality
and quantity of information, has had a large push back from the lower
courts. The District Court for the
Southern District of New York declined to extend protections of digital data to
a computer in United States v. Yudong
Zhu.[3] The court conceded that “Zhu is correct that
a defendant's privacy interests in the information on a laptop implicate the
same interests as that stored on a cell phone.”
However, the court determined that they would not extend the protections
Riley affords digital data. The trick: the third party rule; the court
claimed that because the computer was owned by the university that Zhu worked
for, he had no privacy interest in its contents.
The
District Court for the District of Nebraska also declined to extend Riley’s protections in United States v. Benjamin.[4] The court reasoned that taking data from
credit cards via the magnetic strip was not protected “because it involved
neither a physical intrusion nor any violation of a reasonable expectation of
privacy.” This is an argument stretched
thin. How does one physically intrude a
cell phone without taking it apart, at which point the contents become useless? A search of a cell phone is not a “physical
intrusion;” indeed it is a digital intrusion.
Searching the magnetic strip of a credit card is much the same. Further, the court stated that “[t]o find a
subjective expectation of privacy, the Court would need to believe that the
defendant never intended to reveal the information encoded on the magnetic
strip—that is, that he never intended to use the cards, despite his name being
on them.” The court in Riley held, in dicta, that digital data
can hold a reasonable expectation of privacy.
People intend to reveal the contents of their cell phones
regularly. This can be shown from the
simple example of physically showing a picture to a friend or uploading that
same picture to an app such as Instagram, and Riley upheld privacy interest in cell phones.
A
credit card’s
magnetic strip may have less privacy concerns than does a cell phone, but both
mediums have one thing in common: digital data.
Riley has unearthed a Pandora’s box of legal questions that must
eventually be answered to fall in line with the digital reconstruction of the
Fourth Amendment that is now underway.
Michael Bayern
Senior Editor, Criminal Law Practitioner
nice information here.
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