In this post I’m going to take a break from book reviews and look at the recent Supreme Court decision in the Riley v. California case. (In future posts, I may deal with other cases.) Riley v. California is a very important case because it concerns how and when the police can access the enormous amounts of digital information we carry with us all the time. Specifically, it’s about whether or not the police can search through the information on an arrested person’s cell phone without a warrant.
You can find the written decision on the Supreme Court’s web site here:
I think it’s pretty interesting to read these decisions. You get a deeper understanding of how the judges think about important issues than you would from just reading reports in the media.
For anyone who’s never had the opportunity, let alone the desire, to read one of these things, I thought I’d start with a little primer.
I am not a lawyer and I have no legal training. I will make errors, grossly over-simplify and just plain miss important points. Please do not rely on or accept without question anything you read here.
My only qualifications, if you can call them that, for analyzing decisions of the Supreme Court, or any other court, are:
a) I’ve signed a few contracts, mortgages and leases over the course of my life. I always read the fine print because, as Tom Waits says, “The large print giveth and the small print taketh away.” I guess I’m no longer intimidated by legal language.
b) I took a couple of Political Science courses many years ago when I lived in Canada and we did study a few decisions of the Supreme Court of Canada.
c) I can read.
It turns out c) is the only required qualification. Decisions of the Supreme Court are generally very well written and don’t contain much legalese at all. This makes sense; after all if the Court can’t explain its rulings in language comprehensible to the public, well that would be pretty undemocratic.
You do need to be able to follow a logical argument, though. If you have any experience writing code you’ll have no trouble at all, and even if you don’t, it’s really not that hard.
About That Legalese
While the decisions don’t contain much legalese, there is no escaping it entirely. There are some terms that are helpful to understand, and I’ll go over them as they come up.
Who v. Whom?
The first thing to notice about a case is its name. Is it Riley v. California or California v. Riley and does it even matter?
Well the order doesn’t matter in terms of just naming the two sides in a case, but it does tell you something. The name of the party that is making the appeal goes first. Sometimes this party is called the petitioner or the appellant. The second party is sometimes called the respondent, I guess because they’re responding to the appeal, presumably arguing against it. By the way, a “party” might be a person, corporation, government or some other organization.
So the title “Riley v. California” tells you that Riley is appealing and the State of California is responding.
These titles are often shortened to just one name, say, “Riley” when they’re referred to in legal writing.
As you start to read through the decision, I find it helps to know how these documents are organized. The Court’s written decisions usually follow a common structure with three main sections:
- Opinion of the Court
- Opinions of Individual Justices
Let’s take a quick look at each.
Court decisions usually start with a preface, called a syllabus, summarizing the decision. The syllabus is written by a court official, not by any of the justices. You can skip this entirely or just skim it if you want an outline of the reasoning behind the decision.
After the syllabus, comes the opinion of the Court. The “opinion of the Court” really means the opinion of a majority of the nine justices. One justice among the majority will write the opinion. This section forms the main body of the document and it has a structure of its own which I’ll get to in a moment.
After the opinion of the Court, individual justices may weigh in with their own opinions. These individual opinions come in two flavors; concurring and dissenting. In a concurring opinion, a judge agrees with the main opinion of the Court, but finds it necessary to express different or additional reasons for doing so. Or she may agree with the decision but have different views on how broadly it applies. Even when all nine justices come to a unanimous decision, you can still get these concurring opinions.
A dissenting opinion expresses disagreement with the majority. In split decisions, where the Court is not unanimous, there is at least one dissenting opinion. Dissents are sometimes described in the media as “scathing,” “blistering,’ or “sharply-worded” and they can be when the disagreements are profound.
In either concurring or dissenting opinions, you’ll sometimes see other justices joining or supporting the opinion. For example, in United States v. Windsor, the case about the definition of marriage in the Defense of Marriage Act, Justice Scalia wrote a dissenting opinion and was joined by Justices Roberts and Thomas.
Opinion of the Court
The heart of the document is the opinion of the Court. Its exact format and structure will vary from case to case, but it usually has these elements:
The questions: The opinion will clearly state, often at the very beginning, what legal questions the Court has been asked to decide.
Case summary: The Court will summarize the circumstances of the case or cases being decided and the rulings of the lower courts. It’s not uncommon for more than one case to be decided at the same time. That’s because it’s the Supreme Court’s job to make a final decision when different courts in different parts of the country come to different conclusions. In Riley there were two cases being decided; Riley v. California itself and another case called United States v. Wurie.
Legal background: The Court will review the legal background of the case; the related constitutional provisions, the laws in question, the relevant legal precedents, etc. Many of the cases that make it to the Supreme Court boil down to fundamental issues that have been debated for decades, even centuries. The Court’s review of the legal background can really give you a great history of the laws and previous decisions that relate to the case
Reasoning: The most important part of the opinion is the rationale for the Court’s decision. The Court tackles each of the legal questions one at a time. They often do this by breaking the main questions down into smaller ones. Usually there are competing interests or conflicting principles that must be balanced. In Riley, for example, the Court had to balance the rights to privacy and protection from unreasonable search and seizure against the government’s need to effectively enforce the law. I’ve noticed some common approaches to the way the Court makes these decisions. They try to make them as narrowly as possible. They’ll say their decision applies only to the specific circumstances of this or that particular case, or that their decision should not be interpreted to mean some other broader thing. I think this is because the Court wants to avoid “making” the law, and instead tries to confine itself to interpreting the law. (The line between making law and interpreting law is murky at best, but that’s a topic for another time.) The Court also likes to use “tests” — sets of conditions or criteria — to determine if certain actions or exceptions are justified.
Decision: The opinion concludes with the final decision of the Court. The Court either approves the decision of a lower court, or reverses that decision.
You’ll see dozens of references like this sprinkled throughout the text: Chimel v. California, 395 U. S. 752 (1969). The judges use these whenever they quote or refer to a case, a law or some other document. They’re a little distracting frankly, but unless you’re a legal scholar (in which case why are you reading this primer?) just skip over them.
Alright, that’s enough to get started. Now let’s take a look at the case.
Riley v. California
Since the Court came to a unanimous decision, this opinion has a pretty simple structure. Chief Justice Roberts wrote the opinion of the Court, and Justice Alito wrote a concurring opinion which I’m not going to bother with here.
Legally, the decision isn’t that complicated either. I’m going to try summarizing only the key points of the decision, leaving out many of the nuances and side issues for the sake of simplicity.
Right at the outset, Chief Justice Roberts states that the question the Court must answer is:
“… whether the police may, without a warrant, search digital information on a cell phone seized from an individual who has been arrested.” (Opinion of the Court, p.1)
The Fourth Amendment governs warrants, searches and seizures. It says:
“The 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 Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
They key word here is “unreasonable.” It means the government, via the police, cannot search you or your stuff unless they can show that the search is reasonable. Usually, that means getting a warrant. However, some searches may still be considered reasonable even without a warrant.
Ah, but which ones?
Well, it turns out that back in 1969 there was a case called Chimel v. California in which a man’s house was searched without a warrant after he was arrested. In the Chimel decision, the Court set out guidelines (tests) for when warrantless searches could be justified. The Court said that a warrantless search of an arrested person was OK if it was needed to protect the arresting officers from harm (e.g. searching for weapons), or to protect evidence from being hidden or destroyed. (If you’re reading along, this is covered in Section II of the opinion.)
So to decide the Riley case, the Court first needed to answer these two questions:
1. Was the search of cell phone data necessary to protect the safety of the arresting officers?
The Court said no (Section III A 1). The officers are justified in searching the physical cell phone, for example “to determine if there is a razor blade hidden between the phone and its case.” (p.10) But the information stored on the phone is not a weapon and cannot be used to harm anyone.
2. Was the search necessary to prevent the destruction or hiding of evidence?
The government claimed the warrantless search was justified because of two possible dangers to evidence: remote wiping and encryption. The Court didn’t buy it (Section III A 2). In the case of encryption, searching the phone would not have prevented it since data encryption is done automatically by the phone. Remote wiping, where a third party sends a command to the phone to erase itself, can be blocked by turning the phone off or by wrapping it in foil or some other medium that blocks radio waves such as a Faraday bag. So the Court concluded that the search was not justified by the need to protect evidence.
But there’s something else the Court needed to consider: the privacy rights of the arrested person. There’s broad agreement that an arrested person has a reduced expectation of privacy; they and the items they’re carrying can be searched. But that doesn’t mean they lose all their privacy rights.
The question the Court had to answer here is:
3. Does the arrested person still have a right to the privacy of the information stored on their phone?
“The United States asserts that a search of all data stored on a cell phone is “materially indistinguishable” from searches of these sorts of physical items [carried by the arrestee]. …That is like 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.” (p. 16-17)
In other words, there’s a huge difference between searching a few physical items carried by an arrested person and searching all the data available on their cell phone.
Chief Justice Roberts then goes on to give several reasons for this conclusion:
- Cell phones have massive storage capacity, far exceeding the capacity of say a physical notebook, diary or small photo album that someone might carry with them.
- Cell phones have become pervasive so possession of a cell phone by an arrestee is very common. Allowing warrantless searches of these devices would be a dramatic extension of the search powers of the police.
- New kinds of data (a.k.a. metadata) not available in the physical world are available on cell phones, such as search & browsing history, call logs, GPS information. This data could allow the police to retrace the movements of the arrestee, another very broad extension of search power.
- A lot of the data available on a cell phone is actually stored in the cloud. That data, even the government agreed, cannot be searched without a warrant, but it’s difficult if not impossible for police to distinguish data stored locally on the phone from data stored remotely in the cloud.
Searching through the information on an arrested person’s cell phone is a far greater invasion of privacy than just searching through his or her pockets and goes well beyond what would be acceptable in a warrantless search.
The opinion concludes with this bluntly worded decision:
“Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple — get a warrant.” (p.28)
* * *
Riley is a very important case for the digital age we live in. As we move to a more networked, more on-line world, the privacy and security of our digital information are vital concerns. Revelations about NSA spying and data collection, not to mention data mining by corporations and social networks, have only heightened these concerns.
A unanimous decision coming from a court not generally known for its technical savvy is a very strong statement to the police and to the public. It’s great to see the Court recognizing the substantial difference between the physical information we might carry around and the digital information we can store on and access from our devices.
I don’t agree with some of the decisions the Court has made recently, but they got this one right.
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Post at the Harvard Business Review noting the Supreme Court getting smarter about technology issues like digital privacy, citing the Riley decision as one good example. http://blogs.hbr.org/2014/08/the-supreme-court-is-wising-up-on-digital-privacy/
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