Cell phone 2014

The Court’s unanimous decision in the cellphone privacy cases brought the Fourth Amendment into the digital age. The opinion by the Chief Justice rests on a simple truth: “Cell phones differ in both a quantitative and a qualitative sense from other objects that might be kept on an arrestee’s person.” The outcome follows logically from the text of the Fourth Amendment: “get a warrant” before searching a cell phone seized after an arrest. But that is only the starting point. The Court’s opinion is Riley v. California signals a Court more prepared to engage in the challenges of the digital age ahead.

The Court’s conclusion that data is different will affect not only digital search cases, but also the NSA’s bulk record collection program, access to cloud-based data, and the third-party doctrine. If the sheer volume of sensitive data stored on cellphones makes them different in kind than physical notes or address books, the same can be said about laptops, tablets, and servers. The Second Circuit has already held that officers must delete seized data that is not within the scope of a search warrant, and the reasoning in Riley supports that conclusion.

The Court identified several quantitative differences that underscore the decision to afford cell phones and other “digital containers” greater Fourth Amendment protection than their physical analogs. First, the “immense storage capacity” of cellphones allows “millions of pages of text, thousands of pictures, or hundreds of videos” to be stored and transported. Second, cellphones facilitate the collection and aggregation “in one place of many distinct types of information, ” as well as data dating back “to the purchase of the phone, or even earlier.” Chief Justice Roberts explained, “there is an element of pervasiveness that characterizes cell phones but not physical records.”

But it was not just the quantity of records at issue in Riley that justified increased Fourth Amendment protection, it was also a qualitative difference in the digital records created and stored on cell phones. This data includes “private information never found in a home in any form.” The Eleventh Circuit reached a similar conclusion when it held recently that cellphone location records are protected by the Fourth Amendment.

The Court also notes that cellphones are not only a repository of sensitive personal data, they are also a portal to private records stored on remote servers. The physical container analogy used by the Government to justify the search-incident-to-arrest rule “crumbles entirely when a cell phone is used to access data located elsewhere, at the tap of a screen.” And this problem is compounded by the fact that “[c]ell phone users often may not know whether particular information is stored on the device or in the cloud, and it generally makes little difference. See Brief for Electronic Privacy Information Center in No. 13-132, at 12-14, 20.”

The Court rejected outright the government’s proposal that agencies “‘develop protocols to address’ concerns raised by cloud computing.” The Chief Justice stated plainly that “the Founders did not fight a revolution to gain the right to government agency protocols.” No doubt that sentence will be quoted in the current challenges to the NSA’s bulk collection program, which the government has defended based on its own, self-imposed privacy safeguards.

The Court’s analysis of the qualitative differences with data implies (1) that files stored in the cloud are deserving of the same (if not more) protection than physical “papers and effects, ” and (2) that certain types of information are deserving of special protection. This should not be surprising, since we have already given heightened protection to one special category of information: the contents of communications. But in Riley the Court also explicitly rejected the government’s argument that call logs and other “metadata” are not deserving of Fourth Amendment protection.

The Court’s argument takes clear aim at the third-party rule – that “non-content” records like call logs, location data, and other metadata held by third parties can be collected by the government without a warrant. Like the data stored on cell phones, metadata can reveal “an individual’s private interests and concerns … can also reveal where a person has been” and there is an “element of pervasiveness” in the collection of all metadata records about an individual. Citing Justice Sotomayor’s concurrence in United States v. Jones, the GPS tracking case from the October Term 2011, the Chief Justice wrote: