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SCOTUS — SEARCHES, CELL PHONES…& SELFIES

Cyber Civil Rights, Revenge Porn

SCOTUS — SEARCHES, CELL PHONES…& SELFIES

June 27, 2014

Earlier this week a unanimous Supreme Court held that warrants are required before police can search cell phones.

The Riley v California decision is sensible in most respects as I’ll discuss below, and also consider the ruling’s major implications on victims of cyber crimes, especially victims of Revenge Porn, the nonconsensual distribution of intimate images.

Riley is actually two separate cases, both related to the police searches that are “incident to arrest.”  In Riley v California, an arrestee’s cell phone was searched by the police when he was arrested on gun charges. The phone, which was removed from his pocket at the time of arrest, contained text messages and contacts with the initials “CK” – which the police believed was an acronym for Crip Killer – inferring that the suspect was a member of the Bloods.  The police also found other pictures and videos depicting gang-related activity including one with a car associated with a shooting.  This evidence was obtained without a warrant, and the defendant  moved to suppress it. In the second case covered in the decision, US v. Wurie, two phones were confiscated at the time of arrest from a suspect charged with selling drugs. Shortly after arrest one of the phones received incoming calls from a contact called “my house”.  When the officers opened the phone, a flip-phone, its wallpaper was a photograph of a woman and child.  Using the phone number, the police obtained an address for the suspect, went there, recognized the woman from the image, and searched the house, discovering 215 grams of crack cocaine.  Like in Riley, the defendant in Wurie also moved to suppress all of the evidence obtained from the confiscated phone, as the police did not have a warrant to search the cell phone.

The question before the court was whether warrants are required for the police to obtain evidence from a cellphone confiscated during a lawful arrest.  This decision builds off of the 1969 case Chimel v. California.  In that case the court arrested a man inside his home and then proceeded to search the remainder of his house without a warrant.  The Court held that protecting the safety of arresting officers and preventing the destruction of evidence were reasonable grounds to search the arrestee and the area “within his immediate control.”  This doctrine spawned several controversial offspring that to varying degrees allowed police to conduct warrantless searches.  In 1973 the Court upheld the search of an arrestee’s crumpled cigarette package (US v. Robinson), which was filled with heroin rather than cigarettes.  This was upheld despite the fact that the cigarette pack obviously did not contain a weapon that endangered the arresting officer.

Going forward, the Riley judgment will likely result in a spate of motions coast-to-coast seeking to suppress evidence derived from the warrantless search of a suspect’s cell phone.  It will also make it more difficult for police to piggyback off of data they find that implicates ongoing criminal behavior.  Roberts concedes as much when he writes “we cannot deny that our decision today will have an impact on the ability of law enforcement to combat crime.”

Riley is striking in that ultimately SCOTUS addresses one of the numerous legal accommodations needed in order to address digital technology’s role in the day-to-day life of individuals and the stores of data carried around by all of us on our smartphones.  In recent years, SCOTUS’ stabs at ruling on cases involving technology’s impact on criminal procedure have missed the target. In 2001’s US v. Kyllo, this was particularly evident.   Kyllo concerned the police usage of thermal imaging technology to detect that a home was being used to grow marijuana.  In his majority opinion Scalia defended the 4th Amendment, expressing that a person’s home should be free of unwanted government surveillance.  In Kyllo, Scalia resorted to analogizing modern surveillance with how he believes the Founding Fathers understood the purpose of the amendment in 1791. Similarly, in the 2012 case of US v. Jones Scalia’s majority opinion concluded that affixing a GPS tracker to a suspected drug trafficker’s car constituted a search – a contention all nine Justices agreed with, though in the 5-4 outcome, they disagreed over why. Scalia torturously concluded that because the police had placed the device on the car they had committed a common law trespass against Jones’ property.  Scalia had to return to his originalist jurisprudence to distinguish between the reasonable expectation of privacy test that has been a mainstay of the Court since 1967’s Katz v. United States (holding that electronic eavesdropping of a public pay phone violated the right to privacy).

Justice Sotomayor wrote a notable concurrence in Jones, suggesting that the right to privacy needed to be revised to keep up to date with a world in which people consistently disclose information to third parties via digital media.  The concurrence was notable as Scalia’s majority opinion was widely viewed as a stopgap measure – it did not hold that monitoring GPS data provided via cell phone, for example, was protected by the right to privacy.

Fascinating about Riley is that it unambiguously rejects the Government’s attempts to analogize smart phones with other real world items.  The Government’s failed argument that data searches are “materially indistinguishable” from searching for physical items, is rejected unequivocally – “that is like saying a ride on horseback is materially indistinguishable from a flight to the moon.” He notes that while an arrestee might have a physical snapshot of his/her children on their person, they are not likely to have a thousand of them, and while an arrestee may have one or two letters on his person, he is not likely to carry all of his correspondences for the past several years, as contained in the emails and text messages on our phones.

Thus the rhetorical shift in Riley is towards accepting that digital devices have changed society.  Roberts endorses the notion that smart phones are ubiquitous, writing that they, “are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy.” Never before, to my knowledge, has the court cited the iPhone User’s Guide in a decision!

Now let’s talk about how this law relates to victims of cyber crimes, especially those involving privacy and sex. If we can accept that at least a significant percentage of Revenge Porn is generated from cell phones rather than computers (an increasingly meaningless distinction, although one left open by this decision; where do iPads fit into the doctrine?) then it would unquestionably be useful for the police to be able to search a suspects phone for evidence of malfeasance.  This is still possible, but now a warrant is unquestionably needed.   While it remains possible to claim that exigent circumstances exist to justify the search, Roberts suggest this line of argument is not likely to succeed.  In dicta he recommends practices for a responding officer when they confiscate an arrestee’s electronic devices, including removing a devices battery or placing it into a metal evidence bag designed to block out signals, lest a kill switch be remotely activated to wipe the phone’s content.

All said, when a victim of Revenge Porn (or other online stalking and abuse) reports it, the police will need to rely solely on the information provided by the victim.  Corroborating the victim’s report with data from an arrestee’s cell phone without a warrant will violate the Riley ruling. Additionally, if this is the beginning of a shift by the Court on digital privacy, this holds hope for advocates of Revenge Porn Prosecution.