Two cases whose names may well be connected to one of the most important rulings the Supreme Court will make in our lifetime are United States v. Wurie and Riley v. California. On the surface, the issue is whether the police have the authority to conduct a nonconsensual, non-exigent, warrantless search of a cell phone upon arrest.
While the issue could be disposed of easily with a basic search incident to arrest analysis, where a cell phone (read smart phone, for those who want to think a step ahead) was deemed just another container that happened to hold digital stuff rather than physical stuff, the ramifications are devastating.
The real issue of these two cases is set forth in Jeff Fisher’s merits brief in Riley (courtesy of Orin Kerr at WaPo Conspiracy), where he hammers home the scope and depth of what such a search reveals about the defendant, not to mention everyone the defendant knows. It draws the analogy (because law in the digital age is all about who has the best analogy) to “papers and effects,” the secret thoughts of a human being that are least subject to search by the government.
The scope and depth of what our computers reveal about us. After all, what’s a cellphone, but a little computer. And a smartphone is a little more of a computer. And the next gen will certainly be even more of a computer, capable of accessing our entire world, whether saved, visited or online.
In Wurie, Solicitor General Donald Verrilli tries to old school it, running down the laundry list of arguments based on the authority police have already obtained to search the physical world. The cellphone is just another object, though there might be a difference between removing its back to see if there’s some heroin in there as opposed to turning it on and accessing a Facebook page.
The scope and depth of our lives are going to be decided. The Wurie argument is that it’s just another search incident, no more or less than a search incident that the law already permits. The Riley argument is that the cellphone is the digital gateway to everything in a person’s life, and the search of a cellphone, down the line, is unlike any search incident that ever existed in the physical world. Once a cellphone is secure, there is no reason in the world why police cannot obtain a warrant, assuming probable cause exists, before being allowed to give a defendant and everyone he’s ever known a digital colonoscopy.
At the top level, the two sides take categorical approaches to what they ask the Supreme Court to hold. One might suspect that the Court will split the difference, rejecting the government’s search ‘em all position, but crafting some sort of exception. There will no doubt be a great deal of discussion about this going forward.
For now, read the briefs so that we have a firm grasp of what’s really at stake here. If, as the government wants, an arrest alone gives the police carte blanche access to our deepest, most private thoughts via our digital lives, the damage could be irreparable. But for the Supremes to rule otherwise, it would require them to have a far firmer grasp of the role computers, technology and our digital existence play in our lives today, and going forward.
The rule decided here may well haunt us, and technology, for a very long time. The scope and depth of our lives as revealed by our engagement with technology is at stake. Think about that.