{"id":2387,"date":"2014-11-20T22:44:14","date_gmt":"2014-11-20T22:44:14","guid":{"rendered":"http:\/\/jolt.richmond.edu\/?p=2387"},"modified":"2019-03-08T19:52:26","modified_gmt":"2019-03-09T00:52:26","slug":"riley-v-california-the-new-katz-or-chimel","status":"publish","type":"post","link":"https:\/\/blog.richmond.edu\/jolt\/2014\/11\/20\/riley-v-california-the-new-katz-or-chimel\/","title":{"rendered":"Riley v. California: The New Katz or Chimel?"},"content":{"rendered":"

\"pdf_icon\"DownloadPDF<\/a><\/p>\n

Cite as: Adam Lamparello & Charles MacLean, Riley<\/em> v. California: The New Katz or Chimel?<\/em>, 21 Rich. J.L. & Tech. 1 (2014), http:\/\/jolt.richmond.edu\/v21i1\/article1.pdf.<\/p>\n

Adam Lamparello & Charles MacLean*<\/p>\n

\u201cTo declare that in the administration of the criminal law the end justifies the means\u2014to declare that the Government may commit crimes in order to secure the conviction of a private criminal\u2014would bring terrible retribution. Against that pernicious doctrine this Court should resolutely set its face<\/em>.\u201d[1]<\/p>\n

I. \u00a0Introduction<\/strong><\/h2>\n

[1]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 In Olmstead v. United States<\/em>,[2] Justice Louis Brandeis dissented from a 5\u20134 ruling that allowed law enforcement officers to obtain private wiretapped telephone conversations without a warrant and use them as evidence.[3] Justice Brandeis\u2019 words foreshadowed the threats to civil liberties that technology would pose:<\/p>\n

The progress of science in furnishing the Government with means of espionage is not likely to stop with wire-tapping. Ways may some day be developed by which the Government, without removing papers from secret drawers, can reproduce them in court, and by which it will be enabled to expose to a jury the most intimate occurrences of the home. Advances in the psychic and related sciences may bring means of exploring unexpressed beliefs, thoughts and emotions. \u201cThat places the liberty of every man in the hands of every petty officer\u201d was said by James Otis of much lesser intrusions than these. To Lord Camden, a far slighter intrusion seemed \u201csubversive of all the comforts of society.\u201d Can it be that the Constitution affords no protection against such invasions of individual security?[4]<\/p>\n

[2]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Over three-quarters of a century later, privacy is being attacked in a manner that threatens the liberty of every citizen. The Government is tracking the whereabouts of its citizens at any time of the day,[5] recording Internet search history[6] and data stored on a hard drive,[7] and monitoring messages sent by text message or e-mail.[8] As a result, some individuals may unknowingly be on a terror watch list for downloading a video that depicts Al Qaeda sympathizers burning an American flag and threatening an attack larger than September 11, 2001, when hijacked planes toppled New York City\u2019s twin towers and took the lives of over 3000 people.[9] The most frightening aspect is that the Government is doing all of this without a warrant. In some cases, the Government has no suspicion whatsoever.[10] In every case, the Fourth Amendment rights of its citizens are being violated.<\/p>\n

[3]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 For these and other reasons, Riley v. California<\/em>,[11] where the Supreme Court unanimously held that warrantless searches of a cell phone incident to arrest were unreasonable and therefore violated the Fourth Amendment,[12] came at the right time. As discussed below, Riley <\/em>marks a new era of privacy protection that does not yield in the face of the broad, McCarthy-esque justifications of \u201cnational security\u201d and the \u201cwar on terror.\u201d Instead, the Court recognized that \u201cprotection against such invasions of individual security\u201d[13] supports the conclusion that pre-digital era case law could neither foresee nor protect against these invasions.<\/p>\n

[4]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 The Court\u2019s decision suggests that cellular telephones, particularly smartphones, along with laptop computers and other digital devices, are the twenty-first century\u2019s private \u2018homes,\u2019 where individuals store the \u201cpapers and affects\u201d traditionally accorded Fourth Amendment protection. The unanswered question, however, is whether Riley<\/em> is the beginning of a principled, Katz<\/em>-driven jurisprudence that focuses on privacy protection[14] or a muddled jurisprudence that immerses itself in the many hyper-technicalities that characterized the post-Chimel <\/em>era.[15] This essay argues that Riley<\/em> is the new Katz<\/em>, <\/em>and marks the beginning of increased protections for privacy in the digital age.<\/p>\n

II. The New Katz<\/em>: Privacy for the Digital Age<\/strong><\/h2>\n

[5]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 In Riley<\/em>, <\/em>the Court held that the original justifications for warrantless searches incident to arrest under Chimel<\/em>\u2014officer safety and the preservation of evidence\u2014were not implicated in cell phone searches.[16] Writing for a unanimous court,[17] Justice Roberts correctly held that cell phones could not be used as weapons[18] and that the likelihood of evidence destruction was remote.[19] Thus, absent exigent circumstances law enforcement could not search an arrestee\u2019s cell phone without a warrant and probable cause.[20] Several aspects of the Court\u2019s opinion suggested that the Government\u2019s days of relying on case law from an era of rotary telephones, eight-track tapes, and crumpled cigarette packs is over.[21] Specifically, in distinguishing cell phones from physical objects such as plastic containers, wallets, and address books, the Court recognized that \u201c[c]ell phones differ in both a quantitative and a qualitative sense from other objects that might be kept on an arrestee\u2019s person.\u201d[22]<\/p>\n

A. The Quantity <\/em>of Information in Cell Phones<\/strong>\u00a0<\/strong><\/h3>\n

[6]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Justice Roberts\u2019 opinion recognized that cellular phones, particularly smartphones, are not really \u201cphones\u201d in a traditional sense.[23] Justice Roberts wrote:<\/p>\n

The term \u201ccell phone\u201d is itself misleading shorthand; many of these devices are in fact minicomputers that also happen to have the capacity to be used as a telephone. They could just as easily be called cameras, video players, rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps, or newspapers.[24]<\/p>\n

[7]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Furthermore, cell phones can hold \u201cmillions of pages of text, thousands of pictures, or hundreds of videos [and] . . . [e]ven the most basic phones that sell for less than $20 might hold photographs, picture messages, text messages, Internet browsing history, a calendar, [and] a thousand-entry phone book.\u201d[25]<\/p>\n

[8]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Additionally, a cell phone \u201ccollects in one place many distinct types of information\u2014an address, a note, a prescription, a bank statement, a video\u2014that reveal much more in combination than any isolated record.\u201d[26] As Justice Roberts explained, this information implicates privacy in a manner that physical objects do not:<\/p>\n

[A] cell phone\u2019s capacity allows even just one type of information to convey far more than previously possible. The sum of an individual\u2019s private life can be reconstructed through a thousand photographs labeled with dates, locations, and descriptions; the same cannot be said of a photograph or two of loved ones tucked into a wallet. Third, the data on a phone can date back to the purchase of the phone, or even earlier. A person might carry in his pocket a slip of paper reminding him to call Mr. Jones; he would not carry a record of all his communications with Mr. Jones for the past several months, as would routinely be kept on a phone.[27]<\/p>\n

Justice Roberts also emphasized the \u201celement of pervasiveness that characterizes cell phones but not physical records, [holding that] . . . [p]rior to the digital age, people did not typically carry a cache of sensitive personal information with them as they went about their day.\u201d[28] Comparing cell phones to physical objects was \u201clike 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.\u201d[29]<\/p>\n

B. The Quality of Information in a Cell Phone<\/strong><\/h3>\n

[9]\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0\u00a0 Most importantly, the Court held that cell phones store uniquely private information.[30] For example, \u201cInternet search and browsing history . . . can be found on an Internet-enabled phone and could reveal an individual’s private interests or concerns\u2014perhaps a search for certain symptoms of disease, coupled with frequent visits to WebMD.\u201d[31] In addition, \u201capplication software on a cell phone, or \u2018apps,\u02bc offer a range of tools for managing detailed information about all aspects of a person’s life.\u201d[32] In fact, quoting Learned Hand, Justice Roberts held that the quantity and quality of private information stored on a cell phone is even greater than that stored in a home:<\/p>\n

In 1926, Learned Hand observed . . . that it is \u201ca totally different thing to search a man\u2019s pockets and use against him what they contain, from ransacking his house for everything which may incriminate him.\u201d If his pockets contain a cell phone, however, that is no longer true. Indeed, a cell phone search would typically expose to the government far more<\/em> 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\u2014unless the phone is.[33]<\/p>\n

[10]\u00a0\u00a0\u00a0\u00a0\u00a0 Furthermore, through the use of cloud computing, some of \u201cthe data a user views on many modern\u00a0cell\u00a0phones\u00a0may not in fact be stored on the device itself . . . [due to] the capacity of Internet-connected devices to display data stored on remote servers.\u201d[34]<\/p>\n

III. The Significance of Riley<\/em> and its Application to other Cases<\/strong><\/h2>\n

[11]\u00a0\u00a0\u00a0\u00a0\u00a0 Riley<\/em> is a landmark decision and marks the beginning of the end of the Government\u2019s intrusion into the private digital lives of its citizens.<\/p>\n

A. Pre-Digital Case Law is Easily Distinguishable and Therefore No Longer Controls<\/strong><\/h3>\n

[12]\u00a0\u00a0\u00a0\u00a0\u00a0 The Court recognized that pre-digital era case law could not be applied to digital-era problems.[35] First, Justice Roberts found unpersuasive the Government\u2019s reliance on United States v. Robinson<\/em>, where the Court upheld, under Chimel<\/em>, the warrantless search of a crumpled up cigarette pack.[36] The Court\u2019s decision in Robinson<\/em> significantly expanded Chimel<\/em> by holding that \u201ccustodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification.\u201d[37] Thus, under Robinson<\/em> it did not matter whether the original justifications under Chimel<\/em>\u2014officer safety or evidence preservation\u2014were implicated.[38] The Riley <\/em>Court rejected the reasoning in Robinson<\/em> and, although the Court did not directly overturn Robinson<\/em>\u2019s <\/em>holding that Chimel\u2019s <\/em>dual objectives \u201care present in all custodial\u00a0arrests,\u201d it found that there \u201care no comparable risks when the search is of digital data.\u201d[39]<\/p>\n

[13]\u00a0\u00a0\u00a0\u00a0\u00a0 Additionally, although the Robinson <\/em>Court \u201cregarded any privacy interests retained by an individual after arrest as significantly diminished by the fact of the arrest itself,\u201d the same could not be said in the cell phone context.[40] Indeed, cell phones \u201cplace vast quantities of personal information literally in the hands of individuals,\u201d a search of which \u201cbears little resemblance to the type of brief physical search considered in Robinson<\/em>.\u201d[41] Furthermore, \u201c[t]he possibility that a search might extend well beyond papers and effects in the physical proximity of an arrestee is yet another reason that the privacy interests here dwarf those in Robinson<\/em>.\u201d[42] Put differently, depending on the privacy interests at stake, \u201c[n]ot every search \u2018is acceptable solely because a person is in custody.\u2019\u201d[43]<\/p>\n

[14]\u00a0\u00a0\u00a0\u00a0\u00a0 The Court also rejected the Government\u2019s reliance on Arizona v. Gant<\/em>,[44] which \u201cadded . . . an independent exception for a warrantless search of a vehicle’s passenger compartment\u00a0\u2018when it is reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.\u201d\u2019[45] Importantly, however, Gant <\/em>relied on \u201ccircumstances unique to the vehicle context\u201d to endorse a search solely for the purpose of gathering evidence.[46] Relying on Justice Scalia\u2019s concurring opinion in Thornton v. United States<\/em>,[47] Justice Roberts explained that the unique circumstances in Gant <\/em>are \u201c\u02bba reduced expectation of privacy\u02bc and \u2018heightened law enforcement needs\u2019 when it comes to motor vehicles.\u201d[48] Searches of cell phones, however, \u201cbear neither of those characteristics.\u201d[49]<\/p>\n

[15]\u00a0\u00a0\u00a0\u00a0\u00a0 Most importantly, Justice Roberts recognized that the standard adopted in Gant <\/em>\u201cwould prove no practical limit at all when it comes to\u00a0cell\u00a0phone\u00a0searches,\u201d[50] stating as follows:<\/p>\n

In the vehicle context,\u00a0Gant<\/em> generally protects against searches for evidence of past crimes. In the\u00a0cell\u00a0phone\u00a0context, however, it is reasonable to expect that incriminating information will be found on a phone regardless of when the crime occurred. Similarly, in the vehicle context\u00a0Gant<\/em>\u00a0restricts broad searches resulting from minor crimes such as traffic violations. That would not necessarily be true for\u00a0cell\u00a0phones. It would be a particularly inexperienced or unimaginative law enforcement officer who could not come up with several reasons to suppose evidence of just about any crime could be found on a\u00a0cell\u00a0phone. Even an individual pulled over for something as basic as speeding might well have locational data dispositive of guilt on his phone. An individual pulled over for reckless driving might have evidence on the phone that shows whether he was texting while driving. The sources of potential pertinent information are virtually unlimited, so applying the\u00a0Gant<\/em>\u00a0standard to\u00a0cell\u00a0phones\u00a0would in effect give \u201cpolice officers unbridled discretion to rummage at will among a person’s private effects.\u201d[51]<\/p>\n

The Court also rejected the Government\u2019s reliance on Smith v. Maryland<\/em>,[52] which upheld the use of pen registers to monitor outgoing calls from a suspect\u2019s private residence.[53] In doing so, the Court rejected the Government\u2019s argument that searches can be limited to call logs, as they \u201ctypically contain more than just phone numbers; they include any identifying information that an individual might add.\u201d[54] Finally, the Court refused to permit searches of cell phone data \u201cif [law enforcement] could have obtained the same information from a pre-digital counterpart.\u201d[55] In fact, Justice Roberts made it a point to distance the Court from applying pre-digital era case law to digital age technology:<\/p>\n

[T]he fact that a search in the pre-digital era could have turned up a photograph or two in a wallet does not justify a search of thousands of photos in a digital gallery. 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. And to make matters worse, such an analogue test would allow law enforcement to search a range of items contained on a phone, even though people would be unlikely to carry such a variety of information in physical form.[56]<\/p>\n

[16]\u00a0\u00a0\u00a0\u00a0\u00a0 Indeed, \u201ca significant diminution of privacy\u201d would result if law enforcement could search all areas of a cell phone merely to locate information that could be stored in a pre-digital era physical object.[57] Furthermore, the Government\u2019s argument that law enforcement could \u201c\u2018develop protocols to address\u2019 concerns raised by cloud computing,\u201d was unpersuasive because \u201cthe Founders did not fight a revolution to gain the right to government agency protocols.\u201d[58] They fought to ensure that the Government could not run roughshod over the privacy rights of its citizens\u2014even if its citizens might be safer as a result.<\/p>\n

[17]\u00a0\u00a0\u00a0\u00a0\u00a0 Ultimately, Justice Roberts\u2019 opinion suggests that the Government will now be required to provide a digital-era justification to search the \u201cpapers and effects\u201d that are stored in cell phones.[59] At the heart of Justice Roberts\u2019 opinion was a desire to prevent law enforcement from conducting the types of broad, non-particularized searches, which was \u201cone of the driving forces behind the Revolution itself,\u201d and led the Founders to adopt the Fourth Amendment.[60] Indeed, \u201cthe Fourth Amendment was the founding generation’s response to the reviled \u2018general warrants\u2019 and \u2018writs of assistance\u2019 of the colonial era, which allowed British officers to rummage through homes in an unrestrained search for evidence of criminal activity.\u201d[61]<\/p>\n

B. Rejecting an Ad Hoc<\/em>, Case-By-Case Jurisprudence<\/strong><\/h3>\n

[18]\u00a0\u00a0\u00a0\u00a0\u00a0 In a noticeable departure from its Fourth Amendment jurisprudence, the Court emphasized the importance of creating bright-line rules to govern searches of private cell phone data.[62] Justice Roberts wrote that \u201cif police are to have workable rules, the balancing of the competing interests . . . \u2018must in large part be done on a categorical basis\u2014not in an ad hoc, case-by-case fashion by individual police officers.\u2019\u201d[63] Otherwise, the Court would be thrust into an uncertain jurisprudence that would raise more questions than it would answer:<\/p>\n

[A]n analogue test would launch courts on a difficult line-drawing expedition to determine which digital files are comparable to physical records. Is an e-mail equivalent to a letter? Is a voicemail equivalent to a phone message slip? It is not clear how officers could make these kinds of decisions before conducting a search, or how courts would apply the proposed rule after the fact. An analogue test would \u201ckeep defendants and judges guessing for years to come.\u201d[64]<\/p>\n

[19]\u00a0\u00a0\u00a0\u00a0\u00a0 The Court may have recognized the difficulties that arose in the years after Chimel<\/em>, where the Court\u2019s ad hoc<\/em> jurisprudence was often based on hyper-technicalities that resulted in a muddled, uncertain, and unworkable jurisprudence.[65] Indeed, after Robinson<\/em>,[66]<\/strong><\/em> Gant<\/em>,[67]<\/strong><\/em> and New York v. Belton<\/em>,[68] law enforcement had nearly unfettered authority to conduct warrantless searches incident to arrest, even where officer safety and evidence preservation rationales were non-existent. Simply put, for many years the warrant requirement ceased to exist the moment law enforcement slapped handcuffs on a suspect.<\/p>\n

C. Support for an Internet Neutrality Doctrine<\/strong><\/h3>\n

[20]\u00a0\u00a0\u00a0\u00a0\u00a0 Although it is a Fourth Amendment case, the majority\u2019s reasoning in Riley<\/em> reflects a fundamental truth: the world has changed, and to protect basic civil liberties, the law must change as well. This is particularly true with respect to the Internet, which is the digital age equivalent of traditional public and limited purpose public forums (e.g., public sidewalks and town halls), just as cellular telephones are similar to a private home for search and seizure purposes.[69] The Internet enables the free flow of information between networks, including speech on matters of political, social, and commercial importance. Importantly, however, through pricing and \u201ctraffic shaping,\u201d[70] which involves \u201cslowing down some forms of traffic, like file-sharing, while giving others priority,\u201d[71] Internet service providers have the ability to discriminate against users based on the content of their message, and thus thwart public debate and stifle competition. These practices are the equivalent of allowing the Boy Scouts to march in the public square, while relegating flag burners to desolated areas, remote deserts, or dark alleys.[72] Consequently, the Court should embrace a net neutrality doctrine for the same reason it invalidated warrantless cell phone searches in Riley<\/em>: technology has ushered civil liberties into the virtual world, and the law must adapt by providing legal protections to individuals who speak, assemble, and associate in that world.<\/p>\n

D. The End of Metadata: Protecting Cell Phones as Objects and Repositories for the Fourth Amendment\u2019s \u2018Papers and Effects\u2019<\/strong><\/h3>\n

[21]\u00a0\u00a0\u00a0\u00a0\u00a0 Riley<\/em> establishes cell phones as the new repository for the \u201cpapers and effects\u201d that the Fourth Amendment protects from warrantless searches.[73] Not only did the Court reject the Government\u2019s analogies to pre-digital era physical objects, such as plastic containers, wallets, and crumpled cigarette packs, but it also held that cell phone data, both in quantity and quality, contains more private information than can be found in a private home.[74] To be sure, \u201c[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\u2014unless the phone is.\u201d[75]<\/p>\n

[22]\u00a0\u00a0\u00a0\u00a0\u00a0 In so holding, the Court implicitly recognized that cell phones, to an even greater degree than private homes, engender privacy protections as objects<\/em>, and not merely because of the private data they contain. Thus, just like law enforcement officers cannot enter a home to search for incriminating evidence that might be in plain view inside <\/em>the home, they cannot search any <\/em>area of a cell phone, even though some areas, such as a call log, are less private than, for example, Internet browser history.[76] The point of Riley <\/em>was that cell phones are protected not just for what they contain, but for how they are used in modern society, and for the privacy expectations that millions of individuals have in their phones. Thus, individuals have a reasonable expectation of privacy not merely in a cell phone\u2019s contents<\/em>, but in the phone itself.[77] This could signal the end to warrantless metadata collection, where the Government used cell phone towers to monitor and collect information such as outgoing calls and physical location. In fact, the Court suggested that this type of information also warrants Fourth Amendment protection, \u201c[d]ata on a cell phone can also reveal where a person has been. Historic location information is a standard feature on many smart phones and can reconstruct someone’s specific movements down to the minute, not only around town but also within a particular building.\u201d[78]<\/p>\n

[23]\u00a0\u00a0\u00a0\u00a0\u00a0 For purposes of metadata collection, the message is clear: the Supreme Court is likely to hold that Government will not be permitted to indiscriminately collect metadata unless it has, at the very least, reasonable suspicion.[79]<\/p>\n

E. The Third-Party Doctrine May be Invalidated<\/strong><\/h3>\n

[24]\u00a0\u00a0\u00a0\u00a0\u00a0 The third-party doctrine is also a product of pre-digital era case law, and holds that individuals who knowingly transmit information through a third party can be found to have waived their expectation of privacy in such information.[80] Essentially, because individuals know that a third party may or will view information that is transmitted via a cell phone, they implicitly consent to its disclosure to additional parties. The problem with the third-party doctrine, however, is identical to the problem the Government faced when trying to equate searches of physical containers with searches of cell phone data. The third-party doctrine was developed in an era when the information in question, e.g.<\/em>, a bank record or paper check, did not implicate the same privacy concerns as are present in the cell phone context. As one commentator notes, \u201cthe Supreme Court decisions that established the third-party doctrine are decades old,\u201d[81] and cell phones, just as they are not containers or address books, are unlike \u201cinformation voluntarily conveyed to banks in the ordinary course of business.\u201d[82]<\/p>\n

Riley <\/em>is Katz <\/em>for the Digital Age<\/strong><\/h3>\n

[25]\u00a0\u00a0\u00a0\u00a0\u00a0 To the extent that questions remain about the scope and significance of Riley<\/em>, they can be put to rest by reading three critical passages in the majority opinion that show beyond doubt that Riley<\/em> is Katz<\/em> for the digital age. Indeed, courts should not repeat the mistakes that occurred in the post-Chimel <\/em>era, where courts created an ad hoc<\/em>, hyper-technical, and muddled jurisprudence that eviscerated Chimel\u2019s <\/em>limitations and led to expansive searches regardless of concerns about officer safety and evidence preservation.[83] In fact, Riley<\/em> was the logical result of a jurisprudence that had nearly abandoned the original Chimel <\/em>justifications, and this time the Court signaled that it will not make the same mistake again.<\/p>\n

[26]\u00a0\u00a0\u00a0\u00a0\u00a0 First, by holding that there \u201care no comparable risks [to officer safety and the destruction of evidence] when the search is of digital data,\u201d[84] the Court recognized that digital devices are so fundamentally different from pre-digital era objects that they justified a categorical<\/em> prohibition against warrantless searches.[85] Second, the Court stated in no uncertain terms that cell phones contain a \u201cbroad array of private information never found in a home in any form<\/em>\u2014unless the phone is,\u201d[86] and a case-by-case, Chimel<\/em>-type jurisprudence would only threaten to confuse, undermine, and render uncertain the core commitment to protecting privacy.[87] Indeed, phones are not merely a compilation of YouTube videos, Amazon.com purchases, and personal photographs. They house users\u2019 thoughts, private expressions, and most intimate and confidential communications.[88] Third, and in recognition of this fact, the Court refused to fashion an \u201canalogue test [that] would launch courts on a difficult line-drawing expedition to determine which digital files are comparable to physical records.\u201d[89] Instead, the Court understood that, although the Fourth Amendment remains unchanged from its original purpose, the technology era has changed everything else.[90] With those changes came a reaffirmation of that purpose and a commitment to protect core civil liberties.<\/p>\n

[27]\u00a0\u00a0\u00a0\u00a0\u00a0 Ultimately, the information on a cell phone is so private that the only line to be drawn is precisely where the Court did: \u201c[o]ur answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple\u2014get\u00a0a\u00a0warrant.\u201d[91] Riley <\/em>is the new Katz<\/em>, and soon the Government\u2019s ability to track metadata, record Internet browser history, apply the third-party doctrine to digital data, and peer into other aspects of our private lives will end\u2014just like pre-digital era case law saw its relevance disappear in Riley.<\/em><\/p>\n

IV. Conclusion<\/strong><\/h2>\n

[28]\u00a0\u00a0\u00a0\u00a0\u00a0 Justice Brandeis forecasted that \u201c[t]he progress of science in\u00a0furnishing the Government with means of espionage is not likely to stop\u00a0with wiretapping.\u201d[92] In the law enforcement and government surveillance context, technological advances have made it possible to store an individual\u2019s DNA in a national database, and have made it nearly impossible for that same individual to send an e-mail, download a YouTube video, or transmit a text message without knowing that the government might be watching\u2014without having the slightest degree of suspicion of criminal behavior. In any society that values basic civil liberties, such practices are intolerable\u2014and unconstitutional. In Riley<\/em>, the Court correctly held that, if privacy is to mean anything, it should protect individuals from being monitored without their consent, without a reason, and without a warrant. It is the beginning of principled change and enhanced protections for civil liberties in the digital age.<\/p>\n

 <\/p>\n

\n

 <\/p>\n

* Assistant Professors of Law, Indiana Tech Law School.<\/p>\n

[1] Olmstead v. United States, 277\u00a0U.S.\u00a0438, 485 (1928) (Brandeis, J., dissenting), overruled by <\/em>Katz v. United States, 389 U.S. 347, 353 (1967).<\/p>\n

[2] Olmstead<\/em>, 277 U.S. 438.<\/p>\n

[3] See id.<\/em> at 466.<\/p>\n

[4] Id. <\/em>at 474.<\/p>\n

[5] See, e.g.<\/em>, Klayman v. Obama, 957 F. Supp. 2d 1, 7 (D.D.C. 2013) (describing the information involved in metadata collection).<\/p>\n

[6] See <\/em>Glen Greenwald, XKeyscore: NSA tool collection \u2018nearly everything a user does on the internet<\/em>,\u2019 <\/em>The Guardian (July 31, 2013, 8:56 AM), http:\/\/www.theguardian.com\/world\/2013\/jul\/31\/nsa-top-secret-program-online-data, archived at<\/em> http:\/\/perma.cc\/Y847-C3Q7.<\/p>\n

[7] See <\/em>Jason Mick, Tax and Spy: How the NSA Can Hack Any American, Stores Data 15 Years<\/em>, Daily Tech (Dec. 31, 2013, 12:36 PM), http:\/\/www.dailytech.com\/Former+FBI+Agent+All+Your+Communications+are+Recorded+Government+Accessible\/article31486.htm, archived at<\/em> http:\/\/perma.cc\/ZWZ4-STDD.<\/p>\n

[8] See <\/em>Adam Weinstein, The Government\u2019s Phone, Text, and Email Spying, Explained<\/em>, Fusion (Oct. 25, 2013, 6:00 PM), http:\/\/fusion.net\/abc_univision\/story\/governments-phone-text-email-spying-explained-22515, archived at<\/em> http:\/\/perma.cc\/VCC2-CPHP.<\/p>\n

[9] See <\/em>Jeremy Scahill & Ryan Devereaux, The Secret Government Rulebook for Labeling You a Terrorist<\/em>, The Intercept (July 23, 2014, 2:45 PM), https:\/\/firstlook.org\/theintercept\/2014\/0\/23\/blacklisted\/, archived at <\/em>http:\/\/perma.cc\/4FPY-A344; see also<\/em> Watchlisting Guidance<\/em>, U.S. Nat\u2019l Counterterrorism Center (Mar. 2013) (detailing government qualifications for putting people on a terrorist watchlist).<\/p>\n

[10] See <\/em>Scahill & Devereaux, supra<\/em> note 9.<\/p>\n

[11] Riley v. California, 134 S. Ct. 2473 (2014).<\/p>\n

[12] See id. <\/em>at 2493.<\/p>\n

[13] Olmstead<\/em>, 277 U.S. at 473\u201374.<\/p>\n

[14] See <\/em>Katz v. United States, 389 U.S. 347, 350-51 (1967) (focusing on an individual\u2019s right to be left alone rather than determining what geographic areas are constitutionally protected).<\/p>\n

[15] See<\/em> Chimel v. California, 395 U.S. 752, 762\u201363 (1967); see also <\/em>Arizona v. Gant, 556 U.S. 332, 342 (2009 ); New York v. Belton; and <\/em>United States v. Robinson, 414 U.S. 218, 235 (1973) (highlighting the hyper-technicalities that characterized this post Chimel<\/em> world). In Chimel, <\/em>the Court created the search-incident-to-arrest doctrine, which allows warrantless searches of an arrestee\u2019s person to protect officer safety and preserve evidence:<\/p>\n

When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. Otherwise, the officer’s safety might well be endangered, and the arrest itself frustrated. In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee’s person in order to prevent its concealment or destruction. . . . There is ample justification, therefore, for a search of the arrestee’s person and the area \u201cwithin his immediate control\u201d\u2014construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.<\/p>\n

Chimel<\/em>, at 762-63.<\/p>\n

In the years following Chimel, <\/em>the Court expanded Chimel <\/em>to allow virtually all warrantless searches incident to arrest, even if safety and evidence preservation were not implicated. See, e.g.<\/em>, Belton<\/em>, 453 U.S. at 460 (1981) (expanding Chimel <\/em>to hold that law enforcement officers may search the passenger compartment of an arrestee\u2019s vehicle).<\/p>\n

[16] See Riley<\/em>, 134 S. Ct. at 2484\u201385.<\/p>\n

[17] Id.<\/em> at 2480.<\/p>\n

[18] See id.<\/em> at 2485.<\/p>\n

[19] See id. <\/em>at 2486\u201387.<\/p>\n

[20] See id. <\/em>at 2493.<\/p>\n

[21] See Riley<\/em> 134 S. Ct. at 2485, 2488\u201389.<\/p>\n

[22] Id. <\/em>at 2489.<\/p>\n

[23] See id. <\/em><\/p>\n

[24] Id.<\/em><\/p>\n

[25] Id. <\/em><\/p>\n

[26] Riley<\/em>, 134 S. Ct.<\/em> at 2489.<\/p>\n

[27] Id.<\/em><\/p>\n

[28] Id. <\/em>at 2490 (\u201cIt is no exaggeration to say that many of the more than 90% of American adults who own a cell phone keep on their person a digital record of nearly every aspect of their lives\u2014from the mundane to the intimate.\u201d).<\/p>\n

[29] Id.<\/em> at 2488.<\/p>\n

[30] Id.<\/em> at 2473.<\/p>\n

[31] Riley<\/em>, 134 S. Ct.<\/em> at 2490.<\/p>\n

[32] Id.<\/em><\/p>\n

[33] Id.<\/em> at 2490\u201391 (quoting United States v. Kirschenblatt,<\/em> 16 F.2d 202, 203 (2d Cir. 1926)).<\/p>\n

[34] Id. <\/em>at 2491.<\/p>\n

[35] See Riley, <\/em>134 S. Ct. at 2484, 2494.<\/p>\n

[36] See <\/em>United States v. Robinson, 414 U.S. 218, 225\u201326 (1973).<\/p>\n

[37] Id.<\/em> at 235.<\/p>\n

[38] See id.<\/em> at 235.<\/p>\n

[39] Riley<\/em>,<\/em> 134 at 2484\u201385.<\/p>\n

[40] Id.<\/em><\/p>\n

[41] Id.<\/em> at 2485.<\/p>\n

[42] Id.<\/em>at 2491.<\/p>\n

[43] Id. <\/em>at 2488 (quoting Maryland v. King <\/em>133 S. Ct. 1958, 1979 (2013)).<\/p>\n

[44] See id. <\/em>at 2492.<\/p>\n

[45] Riley<\/em>, 134 S. Ct. at 2484 (quoting Arizona v. Gant, 556 U.S. 332, 343 (2009)).<\/p>\n

[46] Gant<\/em>, 556 U.S. at 343.<\/p>\n

[47] Thornton v. United States, 541 U.S. 615, 628\u201332 (2004) (Scalia, J., concurring).<\/p>\n

[48] Riley<\/em>, 134 S. Ct. at 2492 (quoting Thornton<\/em>, 541 U.S. at 631).<\/p>\n

[49] Id.<\/em> at 2492.<\/p>\n

[50] Id.<\/em><\/p>\n

[51] Id.<\/em> (quoting Gant, <\/em>556 U.S. at 345).<\/p>\n

[52] See id.<\/em>, 134 S. Ct. at 2492\u201393.<\/p>\n

[53] See <\/em>Smith v. Maryland, 442 U.S. 735 at 745\u201346 (1979).<\/p>\n

[54] Riley<\/em>, 134 S. Ct. at 2492\u201393.<\/p>\n

[55] Id.<\/em> at 2493.<\/p>\n

[56] Id.<\/em><\/p>\n

[57] Id.<\/em><\/p>\n

[58] Id.<\/em> at 2491.<\/p>\n

[59] Id.<\/em> at 2493.<\/em><\/p>\n

[60] Riley<\/em>, 134 S. Ct. at 2494.<\/p>\n

[61] Id. <\/em><\/p>\n

[62] See id. <\/em>at 2491\u201392.<\/p>\n

[63] Id.<\/em> at 2491\u201392 (quoting Michigan<\/em> v. Summers,<\/em>\u00a0<\/em>452 U.S. 692, 705 n.19 (1981)).<\/p>\n

[64] Riley<\/em>, 134 S. Ct. at 2493 (quoting Sykes v. United States,<\/em>\u00a0<\/em>131 S. Ct. 2267, 2287 (2011) (Scalia, J., dissenting)).<\/p>\n

[65] See <\/em>Arizona v. Gant, 556 U.S. 332, 345\u201347 (2009).<\/p>\n

[66] United States v. Robinson, 414 U.S. 218, 235 (1973) (holding a custodial arrest based on probable cause is a reasonable intrusion under the Fourth Amendment and requires no additional justification to conduct a search incident to arrest).<\/p>\n

[67] Gant<\/em>, 556 U.S. at 342 (expanding Chimel<\/em> to allow warrantless searches of vehicles when the passenger is unsecured and within reaching distance of the vehicle, and when there is reason to believe evidence relevant to the crime of arrest may be found within).<\/p>\n

[68] New York v. Belton, 453 U.S. 454, 459 (1981) (holding that upon arrest, law enforcement may search a vehicle\u2019s passenger compartment).<\/p>\n

[69] See, e.g.<\/em>, Perry Educ. Ass\u2019n v. Perry Local Educators\u2019 Ass\u2019n, 460 U.S. 37, 45 (1983) (\u201cA traditional public forum is property that by long tradition or by government that have been devoted to assembly and debate\u201d).<\/p>\n

[70] Christopher R. Steffe, Why We Need Net Neutrality Now Or: How I Learned to Stop Worrying and Start Trusting the FCC, <\/em>58 Drake L. Rev. 1149, 1158 (2010).<\/p>\n

[71] Id.<\/em><\/p>\n

[72] See <\/em>Texas v. Johnson, 491 U.S. 397 (1989) (invalidating a statute prohibiting desecration of the American flag).<\/p>\n

[73] See <\/em>U.S. Const. amend. IV (\u201cThe right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no [w]arrants shall issue, but upon probable cause, supported by [o]ath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized\u201d); see also Riley<\/em>, 134 S. Ct. at 2491.<\/p>\n

[74] See Riley<\/em>, 134 S. Ct. at 2490\u201391.<\/p>\n

[75] Id. <\/em>at 2491.<\/p>\n

[76] See id.<\/em> at 2489.<\/p>\n

[77] Id<\/em>. at 2494\u201395 (\u201cOur answer to the question of what police must do before searching a cell phone seized incident to arrest is accordingly simply get a warrant.\u201d).<\/p>\n

[78] Id. <\/em>at 2490 (citing United States v. Jones,<\/em> 132 S. Ct. 945, 955 (2012)\u00a0(Sotomayor, J., concurring) (\u201cGPS monitoring generates a precise, comprehensive record of a\u00a0person’s\u00a0public movements\u00a0that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations.\u201d)).<\/p>\n

[79] See, e.g.<\/em>, Terry v. Ohio, <\/em>392 U.S. 1, 21 (1968) (establishing the reasonable suspicion standard, which requires law enforcement, \u201cto point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion\u201d).<\/p>\n

[80] See <\/em>United States v. Miller, 425 U.S. 435, 442\u201343 (1976).<\/p>\n

[81] Jeremy H. Rothstein, Note, Track Me Maybe: The Fourth Amendment and the Use of Cell Phone Tracking to Facilitate Arrest<\/em>, 81 Fordham L. Rev. 489, 506 (2012).<\/p>\n

[82] Id.<\/em> at 506\u201307 (discussing United States v. Miller, 425 U.S. 435, 442-43 (1976)).<\/p>\n

[83] See generally<\/em> Arizona v. Gant, 556 U.S. 332, 342 (2009 ) (expanding Chimel<\/em> to allow warrantless searches of vehicles when the passenger is unsecured and within reaching a distance of the vehicle, and when there is reason to believe evidence relevant to the crime of arrest may be found within); New York v. Belton, 453 U.S. 454, 459 (1981) (holding that upon arrest, law enforcement may search a vehicle’s passenger compartment); and <\/em>United States v. Robinson, 414 U.S. 218, 235 (1973) (holding a custodial arrest based on probable cause is a reasonable intrusion under the Fourth Amendment and requires no additional justification to conduct a search incident to arrest).<\/p>\n

[84]Riley<\/em>, 134 S. Ct. at 2485.<\/p>\n

[85] See id.<\/em> at 2493.<\/p>\n

[86] Id.<\/em> at 2490\u201391 (emphasis added).<\/p>\n

[87] See<\/em> id.<\/em> at 2484\u201385.<\/p>\n

[88] See<\/em> id.<\/em> at 2490.<\/p>\n

[89] Riley<\/em>, 134 S. Ct. at 2493.<\/p>\n

[90] See<\/em> id.<\/em> at 2490\u201391.<\/p>\n

[91] Id. <\/em>at 2495.<\/p>\n

[92] Olmstead, <\/em>277 U.S. at 474 (Brandeis, J., dissenting).<\/p>\n","protected":false},"excerpt":{"rendered":"

DownloadPDF Cite as: Adam Lamparello & Charles MacLean, Riley v. California: The New Katz or Chimel?, 21 Rich. J.L. & Tech. 1 (2014), http:\/\/jolt.richmond.edu\/v21i1\/article1.pdf. Adam Lamparello & Charles MacLean* \u201cTo declare that in the administration of the criminal law the end justifies the means\u2014to declare that the Government may commit crimes in order to secure […]<\/p>\n","protected":false},"author":4287,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"jetpack_post_was_ever_published":false,"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":"","jetpack_publicize_message":"","jetpack_publicize_feature_enabled":true,"jetpack_social_post_already_shared":false,"jetpack_social_options":{"image_generator_settings":{"template":"highway","default_image_id":0,"font":"","enabled":false},"version":2}},"categories":[1228],"tags":[],"class_list":["post-2387","post","type-post","status-publish","format-standard","hentry","category-articles"],"jetpack_publicize_connections":[],"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"jetpack_shortlink":"https:\/\/wp.me\/paMHOZ-Cv","jetpack-related-posts":[],"_links":{"self":[{"href":"https:\/\/blog.richmond.edu\/jolt\/wp-json\/wp\/v2\/posts\/2387","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/blog.richmond.edu\/jolt\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/blog.richmond.edu\/jolt\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/blog.richmond.edu\/jolt\/wp-json\/wp\/v2\/users\/4287"}],"replies":[{"embeddable":true,"href":"https:\/\/blog.richmond.edu\/jolt\/wp-json\/wp\/v2\/comments?post=2387"}],"version-history":[{"count":0,"href":"https:\/\/blog.richmond.edu\/jolt\/wp-json\/wp\/v2\/posts\/2387\/revisions"}],"wp:attachment":[{"href":"https:\/\/blog.richmond.edu\/jolt\/wp-json\/wp\/v2\/media?parent=2387"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/blog.richmond.edu\/jolt\/wp-json\/wp\/v2\/categories?post=2387"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/blog.richmond.edu\/jolt\/wp-json\/wp\/v2\/tags?post=2387"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}