Part I of this series explained the Supreme Court’s decision in Riley v. California, and why it represents so dramatic an evolution from prior cases where the Court failed to grasp the implications of digital technology for the privacy values pervading the Bill of Rights. This follow-up post explains the social forces animating the decision, with crucial implications for any number of social issues going forward. Where it came from: is the Court “in front,” or behind? It remains important to recognize how a broader social debate made possible last week’s decision in Riley v. California. Only in examining the influence of mass debate on elite legal discourse can we understand how digital privacy — or other contested rights — will evolve in the future. A long-running debate among legal theorists questions whether, and how, courts are influenced by broader public debates beyond the courtroom. On the one hand, courts are inherently reactive institutions. On the other hand, courts have occasionally advanced justice while the political branches remain mired in majoritarian prejudice: in Brown vs Board, the Court — not Congress — forced desegregation on the South, just as Goodridge v. Dep’t of Public Health placed a Massachusetts court near the front of the marriage equality movement (disclosure: I was part of the legal team representing the mayor of new Paltz, NY in a 2004 marriage equality case). Brown vs. Board is relevant not only in demonstrating an example of the Court’s occasional proactivity, but also in rejecting “separate but equal” systems for people of different races. Lost in most commentary about the Riley decision has been an awareness of its serious implications for race, which in turn help reveal whether Riley reflects a Court “out in front,” or instead, one lagging behind American society. The overlooked impact of constitutional doctrine on race Riley will not directly benefit most Americans. The case addressed only 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. Policing abuses, meanwhile, are hardly distributed equally across our society. As I reminded listeners of Uprising Radio last week:
Arrest does not connote guilt….in a lot of places, arrest merely connotes race. [Searches incident to arrest have] long been a way for police to use profiling as a pretext to obtain information about people. In New York City, the NYPD under former commissioner Ray Kelly was transparent about its uses of stop & frisk (analogous to arrest) as an intelligence gathering pretext.
Like the Supreme Court, the NYPD, joined by a series of police commissioners and Mayors, consistently turned their backs on the rights of New Yorkers for years. Then, last year, a political insurrection led to the New York City Council adopting groundbreaking police accountability reforms over the Mayor’s veto, ultimately prompting an electoral sea change as new Mayor Bill de Blasio rode to office on the tide of shared complaints about police abuses unresolved by his predecessors. Between finally recognizing the need to protect digital privacy from frequently arbitrary police practices in the abstract, Riley also concretely restores cell phone privacy to the disproportionately people of color subjected to arrests. In both of those dimensions, Riley represents the Supreme Court finally catching up with social paradigm shifts — not only the widespread use of cell phones and tech advances that make them so attractive for government searches, but also the racial discrimination that pervades what passes for a criminal “justice” system in the US — decades after they had grown entrenched. Riley is a decision by a Court waking up to smell the coffee years after it had long grown cold. The Court catching up is certainly welcome. By what explains the Court finally starting to catch up only now, in 2014? We the People: Wind in our own constitutional sails It’s hard to consider the question without noting the widespread social controversy that emerged over the past year, since Edward Snowden disclosed documents proving longstanding concerns about mass secret NSA warrantless wiretapping. While the Supreme Court didn’t consider the NSA’s program in Riley, it did assess police digital device seizures in the context of a broader, frothing social debate about government surveillance run amok. The Justices may be slow to understand technology — or the lived experience of the people whose rights they frequently trample — but they thankfully seem not to have their heads entirely in the sand. As I went on to explain on Uprising last week:
While unrelated to the dragnet surveillance programs that Edward Snowden revealed…the court in reaching this decision [reflects] the very obvious impact of a year’s of public controversy that…has shifted the background context in which the Court deliberates about what, for instance, is a reasonable expectation of privacy.
Courts play an integral role in our constitutional design. They are the guardians of rights otherwise subject to the political whims of the majority. For the past generation, they have largely abandoned their posts, leaving the American people subject to arbitrary, and often abusive, police. But between the people of New York vanquishing the NYPD before the New York City Council last year, a shifting tide in Congress over the NSA’s dragnet surveillance programs, and now last week’s unanimous intervention by the Supreme Court to block police around the country from searching cell phones without warrants, the tide may be turning. But don’t overlook the currents invisibly moving it beneath the surface. We might see the sail of constitutional rights billow through these discrete institutional decisions, but the wind driving it is the movement of millions clamoring in classrooms, at dinner tables, at rallies, on stage, on the air, in courtrooms, state legislatures and city councils — and on the streets — around our great nation.