Login | April 25, 2024
In Riley the court starts to get technology
SCOTT PIEPHO
Cases and Controversies
Published: July 25, 2014
As many court watchers have noted, the Supreme Court has a technology problem. Whether it is the justices at oral argument trying to understand the “difference” between the Internet and the World Wide Web in an early online obscenity case or the widely-panned Aereo decision from this past term, when the justices try to understand technology – particularly information technology – they conjure images of older people asking their grandkids how to turn this contraption on.
The court’s decision recently in Riley v. California offers some hope that the court is starting to understand at least the implications of technology that is exponentially expanding data capacity, if not how it actually works. The court held that police cannot search an arrestee’s cell phone without a warrant.
By doing so, the court also acknowledged that technology is doing fascinating things to our collective expectations of privacy.
The case consolidates two cases in which police, with probable cause, lawfully arrested suspects, then found evidence on their phones that led to more serious charges. In one case the evidence included videos stored on a smart phone while in the other, involving an arrest dating back to 2007, the evidence consisted of the defendant’s home phone number found on his flip phone.
To reach this decision the court broke with past practice regarding searches incident to arrest. In the classic formulation, police have the authority to conduct a search incident to arrest both to protect officers from the possibility of an arrestee having access to a weapon and to prevent an arrestee from hiding or destroying evidence he has on his person. The authority to search extends only to the defendant’s person and the area in his immediate control at the time of his arrest.
That said, courts have been quite generous about allowing searches incident to arrest as long as the boundaries are respected. Police are able to investigate items that are clearly not dangerous until they figure out what they are. They also are allowed to read notes, open pocket diaries and address books and otherwise dig farther than is strictly necessary to protect officers and to secure the items that were on an arrestee’s person.
This fairly broad license has been justified in part by the observation that a person’s expectation of privacy is greatly diminished once police have probable cause and place him under arrest.
Notwithstanding that principle and the court’s general hands-off policy regarding searches incident to arrest, here the court went the other way. One reason, according to the unanimous opinion penned by Chief Justice John Roberts is that cell phones are different. As the chief justice noted, modern cell phones are in fact very powerful small computers.
As the court noted, “Most people cannot lug around every piece of mail they have received for the past several months, every picture they have taken, or every book or article they have read . . . . And if they did, they would have to drag behind them a trunk of the sort held [previously] to require a search warrant.”
This increased capacity for storing information means that more of the essential truth of a person’s life can be stored on a cell phone – with or without him actually doing anything to it –which in turn generates a heightened privacy interest in cell phones.
This is not the first time that information technology has changed what is functionally private, but the court has not confronted this challenge so directly before. For example, in U.S. v. Jones the court held that police must obtain a warrant before placing a GPS tracker on a car, despite prior case law holding that no one has a privacy interest regarding the movements of his car in public
The court reverted to a troublesome property theory of the Fourth Amendment which past experience suggests is not sustainable. This column noted at the time that the court needed to acknowledge that technology was making easy what was previously nearly impossible – compiling complete detailed records of a car’s movements over a number of weeks.
In the past the simple limits of the physical world have done as much to protect our privacy as legal rules. That is now changing. Information technology is increasingly able to overcome the previous physical limits of data gathering, making everything we do a little more discoverable and a little less private.
As the court said, “We expect that the gulf between physical practicability and digital capacity will only continue to widen in the future.” As that happens, the court needs to revise its understanding of technology in the face of that gap. Hopefully Riley is a step in the right direction.