In a major (and increasingly rare) victory for privacy, the Supreme Court voted unanimously to require a warrant for police to search cellphones of arrested individuals. Chief Justice Roberts issued a consolidated opinion in two cases: Riley v. California, No. 13-132, and United States v. Wurie, No. 13-212. The second case is another loss for the Obama Administration which fought to strip citizens of privacy over their cellphone records — a consistent attack on privacy by this Administration. The Supreme Court also issued a major ruling in favor of cable companies in American Broadcasting Companies, Inc. v. Aereo, Inc., a decision that may not sit well with the many citizens who despise these companies. I will be discussing these decision on CNN with Wolf Blitzer today.
The Riley case involved David L. Riley, who was pulled over in San Diego in 2009 for having an expired auto registration. A search of the car found guns and police searched his cellphone and found what they alleged were street gang contacts and was used to connect him to a shooting. He was sentenced to 15 years in prison despite the absence of a warrant on the cellphone. The police found loaded guns in his car and, on inspecting Mr. Riley’s smartphone, entries they associated with a street gang.
The second case involved Brima Wurie, who was arrested in 2007 in Boston and charged with gun and drug crimes. His phone was also searched without his permission or a warrant. Unlike the California state courts that upheld the Riley searches, the First Circuit correctly threw out the evidence found on Mr. Wurie’s phone.
The Administration pushed to strip privacy protections from citizens, which would have opened up the most commonly held electronic records for all citizens and blow a hole through American privacy law. However, the Administration succeeded in united a normally divided court with this extreme argument.
Chief Justice Roberts noted the new reliance on cell phones for data storage:
Cell phones differ in both a quantitative and a qualitative sense from other objects that might be kept on an arrestee’s person. The term “cell phone” 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. One of the most notable distinguishing features of modern cell phones is their immense storage capacity.
It is important to recognize however that this only requires a warrant which is uniformly granted. However, it requires at least an independent judgment on the probable cause for the search. Roberts noted:
We cannot deny that our decision today will have an impact on the ability of law enforcement to combat crime. Cell phones have become important tools in facilitating coordination and communication among members of criminal enterprises, and can provide valuable incriminating information about dangerous criminals. Privacy comes at a cost. Our holding, of course, is not that the information on a cell phone is immune from search; it is instead that a warrant is generally required before such a search, even when a cell phone is seized incident to arrest.
Here is the decision: Riley Opinion
In Aereo, the Supreme Court dealt a deadly blow to Internet services that allow customers to watch broadcast TV programs on mobile devices. Aereo was launched a year ago and gave customers the ability to watch over-the-air TV programs on a smartphone, tablet, or computers for as little as $8 a month. The cable companies balked at the loss of control and revenue. The Court ruled that Aereo was violating federal copyright law by retransmitting copyrighted programs without paying a copyright fee.
Justice Stephen Breyer, writing for the majority, has become the Court’s guru on all things copyrights or trademarks in recent years. He is generally unpopular for past rulings by the IP community but this one went in favor of the copyright claims. While Breyer stressed that this was a limited decision that will not “discourage the emergence or use of different kinds of technologies,” the remand left little room for Aereo or other companies that might follow it. The case reinforces copyright claims over the public performance of copyrighted works.
Here is that opinion: the Aearo Opinion
JT quotes the Chief Justice’s opinion about cell phones:
I think this language will apply to Smith v. Maryland too.
Cell phones didn’t even exist when Smith was decided.
This is from the ACLU Reply Brief in the Second Circuit (ACLU v Clapper) case:
“A. Smith v. Maryland does not control this case.
The Supreme Court has yet to decide the question presented by this case: whether the Fourth Amendment permits the government to collect hundreds of millions of Americans’ phone records in bulk, indefinitely. The government argues that Plaintiffs’ Fourth Amendment claim is foreclosed by the Supreme Court’s decision in Smith v. Maryland, 442 U.S. 735, but Smith did not present the question presented here, and the Supreme Court’s more recent cases only confirm that Smith does not have the broad reach the government now attributes to it.
As Plaintiffs have explained, Pls.’ Br. 39–45, Smith resolved a narrow question with a narrow ruling. It held that the Fourth Amendment was not implicated by the government’s collection of a single criminal suspect’s phone records over a period of several days. Smith did not address the question of dragnet surveillance. Indeed, just four years after it decided Smith, the Supreme Court explicitly recognized that the distinction between targeted surveillance and dragnet surveillance is a constitutionally significant one. See Pls.’ Br. 41 (discussing United States v. Knotts, 460 U.S. 276 (1983). More recently, in United States v. Jones, 132 S. Ct. 945 (2012), five Justices observed that a different form of dragnet surveillance—the long-term tracking of an individual in public—amounted to a search under the Fourth Amendment. See Pls.’ Br. 41–42; see also United States v. Maynard, 615 F.3d 544, 557 (D.C. Cir. 2010), aff’d sub nom. Jones, 132 S. Ct. 945.
Thus, while it is undoubtedly true that “Smith remains the law,” Gov’t Br. 44, Smith does not control this case. To decide the Fourth Amendment issue presented here, the Court must answer a question that the Supreme Court has never confronted—whether the government’s bulk collection of Plaintiffs’ call records invades a reasonable expectation of privacy. See Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring). It does. As Plaintiffs have explained, the records at issue here are extraordinarily revealing. Collectively, they supply the government with a comprehensive log of Americans’ telephone communications.
And embedded in the records is a wealth of detail about Americans’ familial, political, professional, religious, and intimate associations. Pls.’ Br. 43; see also JA049–058 (Felten Decl. ¶¶ 38–64); PCLOB, Report on the Telephone Records Program Conducted under Section 215 of the USA PATRIOT Act and on the Operations of the Foreign Intelligence Surveillance Court 156–58 (Jan. 23, 2014) … (“PCLOB Report”); PRG, Liberty and Security in a Changing World 110–17 (Dec. 12, 2013), http://1.usa.gov/1cBct0k (“PRG Report”).”
(ACLU v Clapper … ACLU Reply Brief).
I had read about the Aero case a few months ago. I just finished reading the decision. Much more interesting than 6 year old articles by Matt Taibbi. Broadcasting and media are the darling industries of the left. I guess Breyer and his colleagues would have been blacklisted from the A list parties if they didn’t vote as they did.
I asked up-thread “Could this signal something about the court that will help ACLU v Clapper on appeal now?”
The district court in the ACLU v Clapper case relied on Smith v. Maryland, 442 U.S. 735 (1979) to rule in favor of Clapper and against the ACLU.
In the case JT cites to in today’s post, Riley v. California, Justice Roberts went through the court’s precedent and pointed out that cell phones did not even exist when those precedents were established.
The same can be said about Smith v California.
That is the argument the ACLU made in both the lower court, and in the Appellate Court briefing.
I am sure they will mention that aspect of Riley during oral argument.
Could this signal something about the court that will help ACLU v Clapper on appeal now?
All of these unanimous decisions doesn’t allow our host and fellow commenters engage in their favorite pastime, Nino bashing.
The only puzzling thing about Aereo is that it has taken this long to decide that it was a thief. It was a lot like saying that since a rock concert was not being broadcast to cell phones by the promoter, that Aereo had the right to do it.
Other neat ways to search without a warrant: Spying Tools Used by Governments
Developed by Italian company Hacking Team, the mobile modules for the Remote Control System let law enforcement and intelligence agencies perform a wide array of surveillance actions
on Android, iOS, Windows Mobile, and BlackBerry devices, according to researchers from Kaspersky Lab and the Citizen Lab at the Munk School of Global Affairs at the University of Toronto.
The iOS and Android components can log keystrokes, obtain search history data, and allow covert collection of emails, text messages (even those sent from apps such as WhatsApp), call history
and address books. They can take screenshots of the victim’s screen, take pictures with the phone’s camera, or turn on the GPS to monitor the victim’s location.
They can also turn on the microphone to record phone and Skype calls as well as conversations occurring in the proximity of the device.
And another:
“Good News: Supreme Court Rules Against Sweeping Drug Tests”
http://wemeantwell.com/blog/2014/06/25/good-news-supreme-court-rules-against-sweeping-drug-tests/
Excerpt:
“Why It Matters
Since Supreme Court rulings create precedent for lower courts to follow throughout the United States, the Florida decisions are very important. The American Civil Liberties Union of Florida, which challenged both drug-testing plans as unconstitutional, said federal courts have clearly rejected blanket mandatory drug testing by the state.
“The question of whether the state has the power to compel all employees to submit to suspicionless searches without good reason is settled and the answer is no,” said the lead ACLU attorney in the state employees case.
But the most important reason sweeping drug testing (or sweeping electronic surveillance) is wrong is because we have a Constitution. The Fourth Amendment of that beautiful document assures Americans that they have a right to privacy that excludes unwarranted searches. You don’t have to decide if you want the right, it is the default and the government can’t just take it away from you simply because you happen to live in Florida.
That’s what really is at stake here, and why efforts like that of Florida Governor Rick Scott are so wrong. They are, in fact, un-American.”
rafflaw,
If only DiFi could understand… and stop giving deference to the alphabet soup agencies that
reportlie to her Committee about their secret warrants.Say, speaking of FISC, I’m scared if the FISC is allowed to be the sole reviewer of “evidence” used by the Administration to assassinate Americans, anywhere, even in America.
But when the NSA searches your cell phone, or the FBI traces your every movement via your cell phone… General writs of assistance are still OK?
I the 40’s, the physical stoppage of an individual and demanding “Papers, please” by the police was seen as patently offensive… to American eyes. Now, in a digital age, no needs to “stop anyone”… THEY HAVE YOUR PAPERS… er, DATA! Now, who’s offended?
Great decision, but I wonder if this will allow people to go across a border without having their computers or tablets searched? The amazing part of the cellphone decision is that this was an obvious no-brainer that a warrant would be necessary.
rafflaw – there is a separate case on the computers, so I don’t think that is going to change.
A unanimous decision from a court that did not know that some people carry two phones. I applaud the court on their steep learning curve and judgment. 😀
“Now, let’s get this extended to laptops!”
And shouldn’t we give some additional thought to searches of electronic devices at the border?
It is ever so true that the content creators, in my view, have been failing miserably (including CNN which you’re about to be on (if you have not been there already) Professor Turley..that’s why your ever growing community (and a few of us who are working to figure out a way to go beyond the traditional players need to try…Aereo was an interesting concept–but I frankly was not surprised.
Good news, now let’s keep going and not forget some of the other decisions:
https://www.rutherford.org/publications_resources/john_whiteheads_commentary/the_us_supreme_court_is_marching_in_lockstep_with_the_police_state
“When all is said and done, what these assorted court rulings add up to is a disconcerting government mindset that interprets the Constitution one way for the elite—government entities, the police, corporations and the wealthy—and uses a second measure altogether for the underclasses—that is, you and me.
Keep in mind that in former regimes such as Nazi Germany and the Soviet Union, the complicity of the courts was the final piece to fall into place before the totalitarian beast stepped out of the shadows and into the light. If history is a guide, then the future that awaits us is truly frightening.
Time, as they say, grows short.”
Now, let’s get this extended to laptops!
As is often the case, this was just cop laziness. They could have easily gotten a warrant.
Good decision. Since warrants are uniformly granted, just get a warrant.
Otherwise cell phone seizure would be so ripe for abuse – having an officer who pulled you over for a speeding ticket scrolling through your texts with your husband, your photos from vacation, etc just because he could.
Amen!! But, why does it have to be Wolf Blitzer. I know Jake Tapper is on vacation in MV, but how about his sub, John Berman. Anyone would be better than Wolf ‘BREAKING NEWS’ Blitzer.