After a long wandering though a Luddite universe populated by caselaw addressing typewriters and copper-wire telephone communications, the U.S. Supreme Court finally moved into the smartphone era with a unanimous decision in Riley v. California. The Court ruled that cell phones seized by police during an arrest may not be searched without a warrant.
In reaching its decision, the Court conducted a long-overdue consideration of the effects that smart phones have on personal privacy.
Cell phones differ in both a quantitative and a qualitative sense from other objects that might be kept on an arrestee’s person. . . . Before cell phones, a search of a person was limited by physical realities and tended as a general matter to constitute only a narrow intrusion on privacy. . . .
But the possible intrusion on privacy is not physically limited in the same way when it comes to cell phones. . . .
The storage capacity of cell phones has several interrelated consequences for privacy. First, a cell phone collects in one place many distinct types of information—an address, a note, a prescription, a bank statement, a video—that reveal much more in combination than any isolated record. Second, a cell phone’s capacity allows even just one type of information to convey far more than previously possible. The sum of an individual’s private life can be reconstructed through a thousand photographs labeled with dates, locations, and descriptions; the same cannot be said of a photograph or two of loved ones tucked into a wallet. Third, the data on a phone can date back to the purchase of the phone, or even earlier.
Slip Op. at 17-18 (citations omitted)
The consequences of the Court’s recognition of the privacy problems posed by smart phones could stretch far beyond the criminal-justice context of Riley. Massive amounts of data, including all the types routinely stored on smart phones, is also routinely stored on the vast international network of servers called “the cloud.” Although much attention has already focused on the perceived threat of government use of this data when it is gathered by the NSA (and that threat is probably exaggerated by all the hyperbole associated with the Snowden/Greenwald circus show), relatively little attention has yet focused on the ability of private actors–most notably including the cloud service providers themselves–to access (or sell access to) these comprehensive pictures of individuals’ lives. The Court’s developing awareness of the privacy problems posed by smartphones may thus create the groundwork for additional protections, including growth in “privacy torts” that allow persons to sue for damages when the intimate details of their lives are pulled from the cloud and either publicly posted or used privately to discriminate against them.
Other commentary:
Orin Kerr at Volokh Conspiracy: The Significance of Riley (author cited by Supreme Court in opinion)
Kevin Drum at Mother Jones: Supreme Court Unanimously Supports Common Sense in Cell Phone Search Case
Politico: SCOTUS Rules Warrants Needed for Cell Phone Search
New York Times: Major Ruling Shields Privacy of Cell Phones
Jason is an attorney practicing criminal law, civil litigation, and administrative law. Jason formerly worked as a Resident Instructor of International Relations at Creighton University, focusing on civil-military relations and national security strategy. Jason also served 15 years in the United States Air Force, including service at USSTRATCOM, America’s nuclear-weapons command.
Jason lives in Minnesota with his wife, three sons, three dogs, and three cats.