Leonard Deutchman ()
In Riley v. California and United States v. Wurie, 189 L.Ed. 2d 430 (2014), a unanimous U.S. Supreme Court held that the warrantless searches of the contents of cellphones seized from a person were not proper as searches incident to arrest and so, absent exigent circumstances particular to the matter, they were a violation of the Fourth Amendment. The opinion raises many issues, but I will focus on one: When technology changes the nature of what has been thought of as private, should the response be to continue to recognize that privacy, or to rethink what is private?
In Riley, the defendant was driving while his license was suspended and was stopped for driving with expired registration tags. He was arrested when two loaded handguns were found in his car. A search incident to arrest revealed “items associated with the ‘Bloods’ street gang,” as well as a smartphone, according to the opinion.
The searching officer accessed the phone and saw text messages related to the Bloods gang. A detective then found photographs of the defendant in front of a vehicle believed to have been involved in a recent shooting. The defendant was eventually convicted of attempted murder and related charges involving that shooting.
In Wurie, a police officer observed the defendant “make an apparent drug sale from a car,” according to the opinion. The defendant was arrested and police seized two cellphones from his person. The police observed repeated calls to one phone from “a source identified as ‘my house’ on the phone’s external screen.” They noted a woman and child on the phone’s wallpaper, easily accessed the call log and identified the phone number associated with the “my house” label, then used an online phone directory to trace that phone number to an apartment building, where they observed the defendant’s name on a mailbox and, through a window, a woman resembling the woman in the phone’s wallpaper. They executed a search warrant and seized 215 grams of crack cocaine, marijuana, paraphernalia, a firearm and cash. The defendant was convicted of possession with intent to distribute and being a felon in possession of a firearm.
In both cases, the defendants moved to suppress all evidence resulting from the warrantless searches of the cellphones. The motions were denied and the defendants appealed. The Supreme Court granted certiorari and reversed.
The court began by citing Brigham City v. Stuart, 547 U. S. 398, 403 (2006), for the proposition that “the ultimate touchstone of the Fourth Amendment is ‘reasonableness.’” The court recognized that warrantless searches incident to arrest are “well accepted,” but, reviewing case law, found that such searches were for the safety of the officers or to prevent evidence from being destroyed. The court reviewed, inter alia, United States v. Robinson, 414 U. S. 218. 223 (1973), where it found the pat-down search of the defendant upon arrest proper as well as the search of “a crumpled cigarette package” found during the pat-down, inside of which was heroin, notwithstanding the fact that the cigarette package posed no danger to the police, nor was any evidence inside of it in danger of being destroyed. The court also reviewed Arizona v. Gant, 556 U. S. 332, 343 (2009), where it found the warrantless search of a vehicle justified not just for officer safety but due to “circumstances unique to the vehicle context.” Citing to Wyoming v. Houghton, 526 U. S. 295 (1999), the court concluded that justification for a warrantless search was determined by balancing the degree to which the search intrudes upon the subject’s privacy with the legitimate governmental need to perform the search without first obtaining a warrant.
Applying these cases to the search of cellphones, the court first rejected the Robinson rationale, finding that cellphones present no immediate danger, that potential dangers, such as a co-conspirator coming armed to the scene of the arrest because the subject had not called in, were too hypothetical, and that the destruction of evidence was not present “when the search is of digital data.” It further noted that a search as envisioned in Robinson would be brief and minimally intrusive, while with cellphones, searches are far from brief, and, since the phones themselves “place vast quantities of personal information literally in the hands of individuals,” searching them would not be minimally intrusive.
The court also rejected the destruction of evidence as a rationale for per se warrantless searches. The court rejected concerns that evidence on cellphones could be destroyed by remote wiping—when a third party sends a signal to a phone to have the phone erase stored data, or when the phone is preprogrammed to delete data when it enters or leaves preprogrammed areas, or made inaccessible via data encryption, when data is rendered in an unreadable format and can be rendered readable only upon entering the encryption key inputted by the user as a password. The court found “little reason to believe that either problem is prevalent” and that the aforementioned issues could be avoided by disabling the auto-lock features on an unlocked phone, turning off the phone or placing it in a “Faraday bag”—”an enclosure that isolates the phone from radio waves.” The court described the bags as “cheap and lightweight.”
Rejecting Robinson and other cases, the court placed great emphasis on how different cellphones were from the other objects typically searched incident to arrest. The court observed that cellphones today are both a “pervasive and insistent part of daily life.” Moreover, they possess “immense storage capacity,” which distinguishes them from other “containers,” whose searches were limited “by physical realities and tended as a general matter to constitute only a narrow intrusion on privacy.” Cellphones can store “millions of pages” of different types of data that can “reveal much more in combination than any isolated record,” such as a note that might be found in a wallet, for example.
The court quoted Judge Learned Hand’s observation in United States v. Kirschenblatt, 16 F. 2d 202, 203 (CA2) (1926), 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,” noting that the contents of a cellphone today “would typically expose to the government far more than the most exhaustive search of a house.”
The court’s decision presents issues both in what it considers and what it fails to consider.
With regard to the former, the court unfairly belittles the issues presented to law enforcement to secure a cellphone while obtaining a warrant. Local and state law enforcement that have trouble finding the funding for routine patrols will have to purchase Faraday bags and train their personnel as to how to use them. Moreover, those seized phones will have to be searched forensically—in a laboratory by a forensic analyst—as opposed to by the knowledgeable user, such as the detective in Riley.
Most jurisdictions do not have such laboratories. The list of technical requirements is daunting. As well, while the court discounts the time and expertise it will take to generate the search warrant and find a judge to sign it, finding that recent “technological advances” have “made the process of obtaining a warrant itself more efficient,” such jurisdictions, in my experience, are far more prevalent in television shows than across America. If the touchstone under the Fourth Amendment is reasonableness, the steps the Riley court requires law enforcement to take to search a cellphone are simply too burdensome upon law enforcement. The court justifies its holding with the admonition that “privacy comes at a cost.” Since, however, that cost was not properly calculated, the balancing the court said it needed to do was not properly done.
Even more troubling than the court’s twists of the facts to support its position is its failure to address the fundamental, underlying question: Does the capacity of cellphones require that we apply to them privacy concepts born out of far simpler, and different, locations, or does that capacity require us to rethink what we consider private? While the court stresses just how different cellphones are from the other objects typically searched incident to arrest, it fails to recognize that that argument can cut both ways.
If, as the court argues, one can fit a house’s worth of files, photos and books, all containing information we would think of as private, into a cellphone that anyone can place in their pocket, should the phone be accorded the privacy of a house, as the court reasons, or should we rethink what it means to carry a house around in public? After all, an actual house taken around in public—a trailer or motor home—is, as Gant makes clear, searchable.
It may be most helpful to consider how truly new locations must be thought of as truly new. For example, a change even more prevalent than the proliferation of cellphones is the manner in which communications that previously were evanescent, communications like the spoken word that disappeared as soon as it was uttered, have been replaced by text communications, such as email and texts on phones. Co-workers who would spend a few minutes talking about where to go for lunch will now exchange a dozen emails; friends will communicate on Facebook; children will text each other while one is sitting but a few feet away from the other.
It would be absurd to claim that law enforcement should have no access, under any circumstances, to any of these communications because they have replaced evanescent communications to which, by their nature, law enforcement would have had no access. The nature of how the data is created and stored has an effect on how private we consider that information—an effect ignored by the court.
As Justice Samuel A. Alito Jr. observed in his concurring opinion, the changes to human conduct and society, such as those brought by the digital revolution, are much better addressed by a legislature than a court. He noted with approval that after the court held in 1967 that “electronic surveillance”—a wiretap—constituted “a search even when no property interest is invaded,” Congress responded in 1968 with legislation and, since that time, electronic surveillance has been governed primarily by the statute and “not by decisions of this court.”
Alito’s position is the far more reasonable one. The ways in which the digital revolution have changed what individuals and governments can do with information and how people regard what is private are best addressed by the people, in legislation. The court’s opinion in Riley, in ignoring these difficult questions in favor of a simplistic and wrongheaded response to a difficult question, illustrates why.
Leonard Deutchman is vice president and general counsel of LDiscovery LLC, a firm with offices in McLean, Va., New York City, Philadelphia, Chicago, Atlanta, San Francisco and London that specializes in electronic discovery, data hosting, managed review, collections and digital forensics.