Cell Phones: “An Important Feature of Human Anatomy.” Are They Protected?

On June 25, 2014, the Supreme Court ruled on the cases Riley v. California and United States v. Wurie. The Court decided that fourth amendment protections against unreasonable search and seizure require police officers to obtain a warrant before searching the personal cell phone of their arrestee. This decision is significant as a triumph for fourth amendment rights in the digital age. It is especially important to me and my generation because of the importance technology has and will have in our lives. In years to come, the increasing accessibility and power of our gadgetry will undoubtedly provoke unprecedented questions regarding privacy rights. When is an intrusion of our person or property reasonable? When it is unreasonable? Riley is a notable precedent for future cases because the Supreme Court decided unanimously that digital data is inherently different from physical data. The Court, led by Chief Justice John Roberts, recognized the need to change previous privacy policies to adapt to the new, technologically-dependent world. An important question arising from Riley is what effect the ruling will have on other situations involving digital data, particularly on the collection of data by the National Security Agency (NSA).

In Riley v. California, the Court makes clear, in a 9-0 ruling, its opinion that digital data is different from physical evidence: “Cell phones differ in both a quantitative and a qualitative sense from other objects that might be kept on an arrestee’s person.”1 During the oral arguments of Riley v. California, California proposed that officers should be able to search through information on the cell phone that, in theory, they could have obtained as physical evidence on the arrestee. Evidently, California saw no difference between examining, say, written information on an arrestee and examining similar data on a cell phone. The Court, however, rejected this idea, stating that, for example,  “the fact that someone could have tucked a paper bank statement in a pocket does not justify a search of every bank statement from the last five years” on the phone.2 Additionally, California’s proposition would weaken fourth amendment rights further by allowing the police to “rummage through” a wide range of data on the phone that typical arrestees would be unlikely to have on their persons at any one time. For example, the police could search through the photos and videos, the contact information, and the daily journals of the arrestee, even though he or she would be extremely unlikely to have been found carrying their physical counterparts–video tapes, photo albums, address books, and diaries–all at once. Similarly, the Court rejected a previous opinion in United States v. Flores-Lopez (“If police are entitled to open a pocket diary to copy the owner’s address, they should be entitled to turn on a cell phone to learn its number”), thus consciously differentiating between physical and cellular data. The Court recognizes that simply applying old regulations concerning “search incident to arrest” to this new type of digital data would be naïve. Several decades ago, the Court declared that police could search an arrestee’s person, as well as the area within his immediate control3, and that since the arrest of a person is a reasonable invasion of privacy, a subsequent search of the person required no additional justification (United States v. Robinson). Nowadays however, typical people carry vast repositories of information on their own persons, a situation completely different from that which prevailed for most of our history. The Court realizes the need to change policy in response to these social changes brought about by technology. In response to the US’s assertion, in United States v. Wurie, that searching data on a cell phone is “materially indistinguishable” from searching physical data, Chief Justice John Roberts declared incredulously, “[t]hat is like saying a ride on horseback is materially indistinguishable from a flight to the moon. Both are ways of getting from point A to point B, but little else justifies lumping them together.”4

The Court recognizes the extensive changes wrought by the spread of cell phones, particularly smartphones, and accordingly recognizes the need for updating privacy protections in the digital age. Judge Roberts explains that cell phones “are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy”5. The Chief Justice mentions that over 90% of adult Americans have a cell phone, and that many of these cell phones reveal personal information about their owners (Madrigal). “A decade ago police officers searching an arrestee might have occasionally stumbled across a highly personal item such as a diary.”6 Now, however, highly personal items are found on almost all arrestees, in the form of their phones. These phones house photos, locational data, text messages, calendars, videos, notes, transaction information, addresses, numbers, names, personal apps, etc. Permitting policemen to search an arrestee’s phone upon arrest would allow them–complete strangers–to “ransack” his or her Instagram account and texting history as a matter of course. The fact that personal information can nowadays be found so commonly on an arrestee’s person has required an adjustment to the “search incident to arrest” exception to the warrant requirement. Justice Roberts concludes his opinion by saying: “The fact that technology now allows an individual to carry such [personal and private] information in his hand does not make the information any less worthy of the protection for which the Founders fought.”7

In the case Chimel v. California (1969), the Court ruled that it was unconstitutional for police officers to search the entirety of Chimel’s house without a warrant. Under the “search incident to arrest” exception to the warrant requirement, they were only allowed to search the area within Chimel’s immediate control. The opinion in Chimel quoted a 1926 statement from the famed judge Learned Hand, saying 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.”8 However, in Riley v. California, Judge Roberts observes that limiting the search upon arrest to “the area within immediate control” of the suspect is no longer fully protective of the suspect’s fourth amendment rights. Nowadays, if an arrestee has a cellphone in his possession, Roberts argues, a search of that cell phone “would typically expose to the government far more than the most exhaustive search of a house: A phone not only contains in digital form many sensitive records previously found in the home; it also contains a broad array of private information never found in a home in any form–unless the phone is.”9

The Riley/Wurie opinion, as a significant landmark in the saga of fourth amendment cases, brings an important question to the fore. Is the NSA’s collection of information constitutional? Although Justice Roberts, in Footnote 1 of the Riley decision, states that the two cases are concerned solely with searches incident to arrest and not with examination of digital information in other situations, several of his points could be important in a future Supreme Court case involving the NSA. Currently, telephone companies are forced to hand over phone metadata to the NSA. This metadata includes the identity of the speakers, the date of the call, the time at which the call took place, and how long it lasted (this information is collected about typical Americanswho are not suspected of any crime or wrongdoing). In Riley, the Court discusses at length how a spread of limited information can reveal highly personal details about an individual’s life: “The sum of an individual’s private life can be reconstructed through a thousand photographs labeled with dates, locations, and descriptions….”10 Additionally, Justice Roberts cites Justice Sotomayor’s opinion in US v. Jones: “GPS monitoring generates a precise, comprehensive record of a person’s public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations.”11 It is likely that the Court’s focus on protecting privacy against the collection of large amounts of data will be used against the NSA in a future case. Trevor Timm, from the Freedom of the Press Foundation, says that “[t]he government has been relying on one case from the mid-1970s, Smith v. Maryland, that allowed the police to get just the phone numbers dialed of one’s suspect for three days, and have warped it into allowing the NSA to get metadata on everyone essentially forever…and with today’s decision, all signs point to the Supreme Court eventually rejecting that interpretation.”12

The fact that the Court’s decision in the Riley and Wurie cases was unanimous is heartening for staunch defenders of the Fourth Amendment’s protection against unreasonable search and seizure. Evidently, the justices of the Supreme Court agree that digital data is different from non-digital data and that previous privacy policies need to be rethought. Going forward, there are sure to be many technological advances which will complicate even further these important privacy questions. The answers to these questions will greatly affect current and future generations, as technology becomes more and more prominent and indispensable in our daily lives.

  1. Riley v. California, 573 U.S. at 3 (2014). []
  2. Riley v. California, 573 U.S. at 24 (2014). []
  3. Chimel v. California, 395 U.S. 752 (1969). []
  4. Riley v. California, 573 U.S. at 17 (2014). []
  5. Riley v. California, 573 U.S. at 9 (2014). []
  6. Riley v. California, 573 U.S. at 3 (2014). []
  7. Riley v. California, 573 U.S. at 28 (2014). []
  8. Riley v. California, 573 U.S. at 20 (2014). []
  9. Riley v. California, 573 U.S. at 21 (2014). []
  10. Riley v. California, 573 U.S. at 18 (2014). []
  11. Riley v. California, 573 U.S. at 20 (2014). []
  12. Russell Brandom, ‘Get a Warrant’: The Supreme Court’s Huge New Rule for Digital Privacy (The Verge Jun 25, 2014), online at http://www.theverge.com/2014/6/25/5843588/get-a-warrant-the-supreme-courts-huge-new-rule-for-digital-privacy (visited Jul 8, 2014). []

Kodiak is a senior at Palm Desert High School. He is a founding member and Chief of Meetings of the Palm Desert YOTUS chapter. Kodiak has served for two years as a member of JSA and identifies himself as an independent on most political issues. He will likely pursue computer science and a foreign language in college although he is still undecided.

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