The Supreme Court’s unanimous ruling in Riley v. California and US v Wurie has been hailed as a breakthrough for digital privacy, and it is. Lost in most celebration of the Court finally joining the 20th century, however, is an understanding of how it got there. Why this ruling came down in 2014 is crucial to understand for future debates over any number of issues. A watershed case: the Court acknowledges digital privacy Riley represents the first time the Supreme Court has even attempted to meaningfully embrace the privacy issues presented by the digital age. A recent prior case, US vs Jones, addressed GPS tracking by local police. Jones vindicated checks on runaway executive power, though not on privacy grounds. While the Jones ruling rejected extended police GPS surveillance without a warrant, it did so on property grounds, protecting for landowners interests denied to others (namely, anyone who parks a car on a street, rather than behind a fence). Other cases had squarely addressed digital privacy, and courts had tended to go the wrong way, reinforcing government power at the cost of fundamental individual liberty interests. In US v Arnold, for instance, the supposedly liberal Ninth Circuit gave the government the power to arbitrarily search any electronic device of US citizens returning home from international travel even without any individual suspicion of any crime. In that context, Riley reflects the first time the nation’s highest court understood that digital privacy deserves unique protection. Chief Justice Roberts’ unanimous opinion notes how much information police can discern from searching a person’s cell phone (including smartphones but significantly also reaching beyond them), recognizing that “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.” Implications for the NSA dragnet On the one hand, this week’s ruling does nothing to curtail the National Security Agency’s dragnet surveillance of the Internet and the global phone system. In fact, the Court had such a case before last spring, but dismissed it — essentially for lack of evidence — mere weeks before the British press reported facts previously unknown to the US Congress and Supreme Court. Riley addressed the limited context of police powers under the “search incident to arrest” exception to the Fourth Amendment. By narrowing the exception, the Court essentially requires police to obtain a judicial warrant before searching the cell phones of people they have arrested. On the other hand, this week’s ruling on cell phones dramatically shifts the prognosis for cases like First Unitarian Church vs NSA challenging the NSA dragnet (disclosure: I lead one of the roughly 2 dozen organizational plaintiffs in that case). In any case including digital privacy claims, courts will have to consider the surprisingly unequivocal language of Chief Justice Roberts’ opinion. According to Richard Re:
Riley casts a pall over the government’s most aggressive arguments in cases involving computer searches….Riley will become a springboard for new challenges to broad computer searches, even when the police have obtained a warrant.
Its unanimity, moreover, reflects the decisive force of the Court’s conclusion. Warrantless digital searches are not an issue in flux, but rather one that the court has definitively decided: the migration of our private information from file cases into our pockets does not shift the government’s constitutional commitment to respect our privacy. Riley could be a watershed case that defines a crucial turning point in the law, a generational course correction from decades of essential lawlessness when courts let police run amok. Part II of this series explains why the Court’s recognition of digital privacy took until 2014 to crystallize, and what that means for the future of digital privacy — and any number of other issues.