by: David Harris-Gershon on June 25th, 2014 | 2 Comments »
The Supreme Court unanimously ruled today in Riley v. California that digital privacy is protected by the Fourth Amendment, holding that law enforcement must produce a warrant to search an arrestee’s cell phone or mobile device.
While this decision only addresses physical searches of a person’s cell phone, Riley v. California may not-so-subtly be signaling that potential legal thorns exist for the NSA and the intelligence community, particularly after one specific sentence written by Chief Justice John Roberts, who authored the decision. However, before examining this aspect of the court’s decision, first let’s briefly examine how Riley v. California has unmistakably distinguished digital privacy as a Fourth-Amendment-protected entity when it comes to physical searches by police.
One of the most significant aspects of today’s ruling was the court’s distinguishing digital devices from other items a person might have on their person when searched by law enforcement. Justice Roberts wrote that such devices today contain digital records of “nearly every aspect of [one's] life,” and therefore cannot be treated during a search as merely one in a number of items an arrestee might have in her pockets:
Before cell phones, a search of a person was limited by physical realities and generally constituted only a narrow intrusion on privacy. But cell phones can store millions of pages of text, thousands of pictures, or hundreds of videos. This has several interrelated privacy consequences. First, a cell phone collects in one place many distinct types of information that reveal much more in combination than any isolated record. Second, the phone’s capacity allows even just one type of information to convey far more than previously possible. Third, data on the phone can date back for years. In addition, an element of pervasiveness characterizes cell phones but not physical records. A decade ago officers might have occasionally stumbled across a highly personal item such as a diary, but today many of the more than 90% of American adults who own cell phones keep on their person a digital record of nearly every aspect of their lives.