A post by Conor Friedersdorf pointed me to a piece by Politico’s Josh Gerstein that I had missed discussing the impact that the Supreme Court’s ruling on the cell phone search cases, Riley v. California and United States v. Wurlie, could have for the ongoing battles over the National Security Agency’s surveillance programs:
Chief Justice John Roberts’s 28-page paean to digital privacy was like music to the ears of critics of the NSA’s metadata program, which sweeps up details on billions of calls and searches them for possible links to terrorist plots.
“This is a remarkably strong affirmation of privacy rights in a digital age,” said Marc Rotenberg of the Electronic Privacy Information Center. “The court found that digital data is different and that has constitutional significance, particularly in the realm of [the] Fourth Amendment…I think it also signals the end of the NSA program.”
Roberts’s opinion is replete with rhetoric warning about the privacy implications of access to data in individuals’ smart phones, including call logs, Web search records and location information. Many of the arguments parallel, or are virtually identical to, the ones privacy advocates have made about the dangers inherent in the NSA’s call metadata program.
Modern cell phones, as a category, implicate privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet, or a purse,” the chief justice wrote in an opinion that concluded police nearly always need a warrant to look through a phone or similar device. “An Internet search and browsing history, for example, can be found on an Internet-enabled phone and could reveal an individual’s private interests or concerns — perhaps a search for certain symptoms of disease, coupled with frequent visits to WebMD.”
For the NSA debate, the most significant idea in the court’s Wednesday opinion may be the notion that scale matters. Roberts and his colleagues soundly rejected arguments from the Obama administration that because police can search a few printed photographs found in someone’s wallet, officers were free to search thousands of images and the troves of other personal data contained on a typical smartphone.
Government lawyers engaged in the NSA fight have pointed to a 1979 Supreme Court ruling that approved the use of a trap-and-trace device put on a single phone line to investigate harassing phone calls. That decision, those attorneys say, means there is no constitutional problem with authorities assembling data on many — or even all — calls made in the United States.
Critics have said the two situations bear little resemblance to one another, in part because of the huge difference in scale.
“It’s very important that the court is recognizing that quantity matters,” said Georgia Tech professor Peter Swire, a privacy expert and member of a panel President Barack Obama set up to review the NSA’s call metadata program. “The court has said that quantity matters when it comes to the content of cell phones. And I believe the court will feel the same way when it comes to massive databases of telephone calls or computer communications.”
A former cybercrime prosecutor said the justices also seemed to recognize that scale of the collection not only gives the government more data, but also the ability to be much more intrusive than in earlier eras.
“The distinction here is more than just the capacity of the device to hold pictures,” said Alex Southwell, now with law firm Gibson, Dunn & Crutcher. “A cell phone is orders of magnitude different, not just in terms of numbers of items held but also in terms of the intrusiveness if searched. The mosaic of information available from seeing the whole of the data is transformative, just like the call records at issue in the NSA program.”
The NSA metadata debate and the cell phone debate are, obviously, not completely analogous. Unlike the data that is contained on a cell phone or smartphone, the metadata that the NSA gains access to as part of its surveillance programs is not under the control of the person who would be asserting a Fourth Amendment right. In general, that lack of control has led courts to rule that there is no reasonable expectation of privacy that would lead to the requirement that the government obtain a search warrant. The most important case in this area, at least as it has been applied to technology up until this point, is Smith v. Maryland. In that case, the Supreme Court held that the installation of a pen register, a device capable of tracking all the numbers called by a particular telephone that is installed at a telephone company switch station rather than anywhere on the property of a potential suspect is not a search within the meaning of the Fourth Amendment, thus meaning that police do not need to get a search warrant in order to have such a device installed.
Smith remains good law to this day and, at least on a cursory examination, would appear to completely authorize the NSA’s data mining programs. After all, if it is permissible for the government to use a pen register without a warrant then surely it would authorize what the NSA does, right? Ostensibly, the answer to that question should be yes as long as Smith remains good law, or to the extent that it is still good law when applied to modern technology and modern ideas of what constitutes an individuals zone of privacy. Even before the cell phone cases were argued before the Supreme Court, though, one Federal Judge ruled otherwise, holding that the NSA’s programs were likely unconstitutional. In that case, Judge Richard Leon of the U.S. District Court in Washington, D.C. essentially found that the Court’s holding in Smithwas not applicable to the case before him because it was dealing with the entirely different communications world of the late 1970s and early 1980s and that, today, Americans do have an “expectation of privacy” in the metadata that their phone company complies about them.
Amy Davidson points out the relationship between this argument against the NSA’s surveillance program and the Court’s decisions in Riley and Wurlie:
Since the Snowden revelations, we have been constantly reassured that much (though not all) of what the government collects without a warrant is “just” metadata—and what could be the harm in that? Metadata is supposedly distinguishable from content—it is information about a communication, the labels affixed to it, the addresses and the contacts, the times and the dates, and perhaps the locations. The reply is that an enormous amount can be learned from putting pieces of metadata together, and an awareness of that is present in Riley v. California and its companion case, United States v. Wurie. After the police took Brima Wurie’s phone, they saw calls from a number that came up as “My House”; that was used to connect him to evidence found at the address associated with the number. Police looking at Riley’s phone saw that some names on his contact list were designated “CK,” which they took to be shorthand for “Crip killer,” and part of their evidence for his affiliation with the Bloods gang. (Another piece of evidence was a photo on his cell phone of Riley with yet another car, a red Oldsmobile—the Blood’s color—that had been at the scene of a gang shooting.) “We also reject the United States’ final suggestion that officers should always be able to search a phone’s call log, as they did in Wurie’s case,” Roberts wrote, noting that “the Government relies on Smith v. Maryland”:
The Court in that case, however, concluded that the use of a pen register was not a “search” at all under the Fourth Amendment. See id., at 745-746. There is no dispute here that the officers engaged in a search of Wurie’s cell phone. Moreover, call logs typically contain more than just phone numbers; they include any identifying information that an individual might add, such as the label “my house” in Wurie’s case.
Granted, it is not at all clear that the Court would view metadata the same way that they are viewing data on a phone. However, what I think makes the joint Riley/Wurlie significant is the fact that it appears to be the beginning of a recognition by the Court that the rules set down by Smith don’t really work in the modern era unless you want a result that gives law enforcement far more power to look into the private lives of citizens than they have ever had before, not because the law changed but because society, technology, and the way we view what is “ours” has changed significantly. In the cell phone cases, the Court took the first step toward recognizing that fact.
This is why I think that Riley and Wurlie are likely to come to be viewed as perhaps the most significant decisions that the Court handed down in its October 2013 Term. Yes, Hobby Lobby is likely to resonate for many years to come, and the consequences of that decision are just not starting to become apparent. However, these cell phone cases will have implications for a wide ranging area where the law bumps up against new technologies, and they will impact pretty much every person in the country in one way or another.. For example, what expectation of privacy does someone have to data stored in the cloud, or to email and private financial information stored on third-party servers? What about the question of whether or not police must obtain a warrant in order to track the location of your phone, tablet, or computer via GPS or other means, or whether someone can be forced to reveal the password necessary to decrypt their computer’s hard drive? Those last two issues are already being dealt with by Federal Courts, as I discuss at the links. While we cannot know how the Courts will ultimately deal with these and other issues that we have yet to imagine, the good thing about the decision in Riley/Wurlie is that the Court seems to have started this new area of the law off on the right foot.
