What, Me Wurie?

An avalanche of amici have arrived in the two cellphone cases coming before the Supreme Court in April, Wurie and Riley.  As previously discussed, these cases present an opportunity for the Court to impact the future of privacy, either by creating the foundation for distinguishing technology from historic 4th Amendment precedent that no longer applies, extending that precedent by failing to address the fundamental distinction between the digital world and the physical world, or splitting the baby.

Here are the amici briefs of which I’m currently aware. If there are others, regardless of side, please let me know and I’ll add them in:

The National Association of Criminal Defense Lawyers and the Brennan Center for Justice at New York University School of Law

The Electronic Privacy Information Center (EPIC), et al.

The Center for Democracy and Technology and the Electronic Frontier Foundation

Assorted Criminal Law Professors

Edit: Some more amici briefs from the comments:

Brief of the American Library Association

Brief of the National Press Photographers Association

Brief of the American Civil Liberties Union

Brief of the Cato Institute

Brief of the Constitutional Accountability Center

Brief of the DKT Liberty Project

Brief of Professors Charles Maclean & Adam Lamparello (in support of neither party)

The briefs take the same direction and, in varying ways, make the same few points:

The digital content of  ubiquitous electronic devices contain a breadth and scope of personal information so monumentally far beyond the physical world content that existed previously.

The briefs address this in somewhat different ways, whether by example, by comparison or rhetorically.  They take a more expansive view, as well they should, than the parties’ merits briefs, as the impact of the decision could well affect other new technologies, such as Google Glass, as well as those yet to be invented.  Nor is it limited to the content stored on the device, but the access the device provides to cloud-stored content and information.

The historic interests served by allowing a search incident to arrest do not apply to digital content.

This is the “remember the rubric, forget the rationale” argument. The two interests served by a search incident to arrest are to protect the officer from harm and preserve evidence from destruction.  Once the police ascertain that a cellphone (or any other device) isn’t a weapon and doesn’t contain a secret cache of heroin where the battery goes, the justification for the search ends.

To the extent there is any “real” concern for the destruction of evidence contained on a digital device, say by third-party remote “command,” it can be easily accommodated without need for a warrantless search.

The arguments in support of an immediate search include the possibility that a confederate might send a remote signal to cleanse the contents of a digital device, making it impossible to search later, after a warrant has been obtained. This can be eliminated by putting the device into a Faraday Bag, which will block RF signals and is readily available on Amazon.

The theoretical arguments further devolve into some flights of fantasy (what if devices are programed to automatically delete themselves if a person doesn’t “check-in” hourly, for example). The response is that if there are any arguments to support a claim of exigency, then they should be made, but they can’t be assumed and such outliers shouldn’t form the foundation for the rule.

The briefs argue for a bright-line test, that cellphones and other digital devices should not be subject to search incident to arrest, as easily applicable, doctrinally sound and consistent with the expectation of privacy.

In addition, an amicus brief has been filed on behalf of the National Association of Press Photographers and 13 media organizations, per Ronald Collins at Concurring Opinions, although he neglects to provide either a copy or a link to the brief.  According to the post, it takes an interesting tangential perspective on the issue:

Here is the problem for the media: “These new technologies have greatly expanded the ability to gather and report news, but the same capabilities that make them a boon to journalists create a grave threat if they are subject to unrestricted warrantless searches incident to arrest. Unfortunately, the threat is not just hypothetical, and the enhanced newsgathering capacity may have made reporters more frequent targets of police action. There has been an epidemic of arrests for nothing more than the journalistic enterprise of photographing public events. Frequently, such arrests are made on generalized charges of ‘disorderly conduct’ or ‘disturbing the peace,’ and often charges are dismissed without further action. But such circumstances could be used, and in some cases have been used, as a predicate to search or seize photographic equipment.”

This raises a fascinating, and extremely important, secondary “unintended consequence” of authorizing the police to seize digital devices per a search incident to arrest, raising the specter that the arrest is merely a sham to deprive the media of access to its content.

The same point applies to sham arrests (think Whren pretext stops) to gain access to the wealth of information contained on a target’s smartphone. And if that’s not enough, consider the use of phony busts just to harass someone by depriving them of their device and access to the digital world.  The possibilities are endless and devastating.

Confidential Memo to EFF’s Hanni Fakhoury: You didn’t really say this, did you?

 “If we’re going to truly have privacy in the digital age, we need clear, common-sense guidelines for searches of digital devices, with meaningful court oversight of when and how these searches can be conducted.”

I’m begging you, Hanni, please never, ever, ever ask a court for “common-sense guidelines.”  First, there is no such thing as “common sense,” which is just an excuse to impose truthiness in the absence of evidence and logic. Second, what passes as “common sense” never serves to protect constitutional rights, but is the dumbass way to justify the evisceration of rights in favor of some Nancy Grace-like aphorism. Where there’s smoke, there’s fire, y’all.

Please don’t do that. Please?

21 comments on “What, Me Wurie?

  1. pvine

    All 11 amicus briefs are on the Brennan Center website. Save time, read Andy Pincus’ brief. By far the most persuasive.

    [Ed. Note: I’ve taken the liberty of breaking up your comment into two parts. The balance to follow in a separate comment.]

    1. SHG Post author

      Some additional briefs:
      Brief of the Cato Institute

      Brief of the Constitutional Accountability Center

      Brief of the DKT Liberty Project

      Brief of Professors Charles Maclean & Adam Lamparello (in support of neither party)

      The MacLean/Lamparello brief uses a full argument point to highlight one of the most critical aspects of this case:

      The Court’s Rules in these Cases Will Drive Constitutional Jurisprudence for Decades No Matter Where the Digital Age Leads Us; It is Essential, therefore, that the Court Fashion a Broad Rule

      Oh, yes. Yes, indeed.

      As for “saving time,” meh. They all offer something worthy of submission, and while the Pincus brief is good, I strongly disagree that the others are not just as good.

  2. Pvine (via SHG) Post author

    [Ed. Note: This is the balance of Pvine’s comment above.]

    For what its worth (probably nothing), IMHO the Court will hold the search of W’s CP reasonable because (1) he was arrested for a serious felony — dope dealing; (2) after seeing the “My House” communication in plain view on the front of the CP, the cops had probable cause to believe that evidence of that arrest would be found on his CP; (3) the cops limited their search to the call-log file in their focused attempt to determine the telephone number for “My House” (i.e., W’s house); and (4) the delay that would have had ensued had the cops been required (by the 4A) to get a warrant before conducting their limited, focused, PC-based search might have resulted in the dope (which they had PC to believe would be found at W’s house) being moved to another location by the caller who was alerted that W was not answering his CP and therefore might have been apprehended.

    But the Court will find that the search of R’s CP was unreasonable because (1) he was not arrested for a felony and the cops didn’t have PC to arrest him for any felony before searching his CP; (2) the cops didn’t have PC to believe that evidence of the crime of arrest — the misdemeanor of carrying a concealed gun — (or any crime for that matter) would be found on his CP; and (3) the cops search of the CP was not limited or focused (based on PC). Rather it was a rummaging-style search that looked at text messages, photos and videos — “papers” and “effects” that had no reasonable connection to the misdemeanor crime of carrying a concealed gun.

    In sum, the totality-of-the-circumstances balancing test (used, for example, most recently in Maryland v. King) leads to the conclusion that the limited intrusion on W’s (reduced, but not eliminated, privacy interests) was justified by the legitimate object of the cops in quickly determining where W lived in order to get additional dope off the streets. But, the same test leads to the conclusion that the search of R’s CP was unreasonable because the level of intrusion on his privacy was not sufficiently justified by a properly focused and restrained goal of the cops — a goal that appears to be simply a fishing expedition.

    1. SHG Post author

      Your “guess” seems to be well within reasonable parameters, and consistent with your view that the “reasonableness” trend will prevail. It is also one of the nightmare scenarios.

      Just so I’m clear, my view is that if the Court allows police to search and seize content, it’s not merely a look-see, but will end with a dump/mirror of the drive. Anything other than a bright-line rule will leave us fighting over every case, with the cops conducting a dump every time, only to test later whether it was constitutional. After all, the worst that can happen is it gets suppressed. No reason not to seize and dump everything. Plus, even if its suppressed as evidence, they still have the dump.

      And given the pressure to approve post-hoc fruitful searches, there will be great incentive to search, and most that produce evidence will be approved whether justified or not. And then there will be the inconsistent decisions everywhere, as there are now, and then, there are the people arrested but never prosecuted, whose dump then becomes part of the vast treasure law enforcement will accumulate with little to do about it.

      It’s not a pretty picture.

      1. pvine

        I highly doubt that the Court will issue a broad, categorical rule that all warrantless, nonexigent, nonconsensual searches of digital data storage containers (DDSC) are per se unreasonable. Ain’t gonna happen, because the Court doesn’t want to completely foreclose the possibility that there exists, somewhere in the universe, a reasonable warrantless, nonexigent, nonconsensual DDSC search. There does. Wurie is an example.

        The Court is going to tippy-toe into this quickly evolving arena very carefully. At this point, that caution requires an ad hoc, case-by-case approach. Thus, the most likely approach is a totality-of-the-circumstances, reasonableness balancing test weighing, in each particular case, the level of intrusion on privacy vs. the government’s legitimate justification(s). The days of black and white bright line rules (cutting in favor or against the cops or the accused) are over (for the time being). More nuanced balancing is currently in vogue. And if a majority of the Court believes that the Warrant Clause is separate and distinct from the Reasonableness Clause (which I believe they do) balancing is a constitutionally acceptable means of resolving warrantless search/seizure cases. No need to shoehorn the facts into a particular Court-created warrant exception that might have been established in an era far removed from today’s technologically advanced world.

        This is not to say that the Court will not implicitly issue general guidelines. It will. But those guidelines will emanate from the individualized adjudications in Wurie and Riley. As my previous post stated, I believe those general guidelines will include, at a minimum, (1) an actual felony arrest (or PC to arrest for a felony) [Terry reasonable suspicion or Gant reasonable belief won’t cut it], (2) PC to believe evidence of that felony will be found on a specific/particular location on the DDSC, and (3) a correspondingly limited, focused search. The fact that the cops had the time to get a warrant (if, in fact, they did) will not be the sine qua non to determining the constitutionality of their conduct. As Justice Alito stated last week in the Fernandez case, that fact is “beside the point.”

        1. SHG Post author

          Notice how I respond without predicting? I also don’t play fantasy SCOTUS. It’s not that you may not be right (though I might be inclined to pick apart some of your rationale), but trying to handicap the court has always struck me as a fool’s errand. I much prefer to argue my view beforehand, and then applaud/jeer when the opinion comes out, with maybe a touch of voodoo after oral argument.

          1. pvine

            I like predictions as long as they are backed up with substance and aren’t simply voodoo. But, you are right, in the end they aren’t worth the (private or public) “paper” that they are written on. So feel free to remind me of my predictions at the end of June.

  3. Michael Malone

    My guess, if I may be so bold, is that regardless of the outcome in either case, there will soon be a boon on cell phone encryption. And I always thought working as a bartender was the reason my phone locks automatically at the drop of a hat, and that it deletes its contents with 10 incorrect entrances of the passcode.

    Although, I wonder. With the new iPhone 5s with the fingerprint recognition, would it be legal for the police to force you to use your finger to unlock your phone?

    1. SHG Post author

      Maybe, or maybe only the folks who fear arrest will encrypt, and the vast majority won’t bother because they believe they’ll never get arrested. As for the iPhone 5s, do you think there isn’t a backdoor already in there?

      1. pvine

        The fact that the overwhelming majority of arrestees who are subjected to custodial interrogation don’t invoke is circumstantial evidence of this point.

        1. SHG Post author

          It’s evidence of a great many things, none of which reflect well on the intelligence of Americans.

  4. LC in Texas

    My opinion only, a cell phone is the extension of your papers and the right to feel safe.

  5. John Barleycorn

    Thanks for putting this post together esteemed host and thanks to your commentators for the additional info as well.

    Trumpet salute.

  6. Charlesmorrison

    SJ, what’s your over/under on how soon a justice posits the scenario of a bomb in a city and the need to extract data from a confederate’s phone? If I gave you five minutes, which would you choose?

    That’s a popular hypo and speaks to the fundamental issue you point out: does the warrant clause truly modify the previous reasonableness clause? The court has traditionally offered analyses in a silo, so to speak. Some types of searches are evaluated under the former clause (admin searches, border operations, checkpoints, etc,), while others are evaluated according to the latter (and its many exceptions). I share the concern that eventually the reasonableness clause and the attendant “balancing test” might eventually predominate 4th amend. law (except for homes, I think the court will continue to recognize a persons’s home is “different,” save for the exceptions already in place, such as hot pursuit).

    But the modern trend is certainly to balance a privacy interest against a public interest when folks are on the street. It will be interesting to see the grasp the chosen nine have for the place cell phones play in modern life, and if they give a damn.

    1. SHG Post author

      The bomb scenario is a red herring. First, it would fail under almost any test, so that there could be no doctrinal limits. Second, it wouldn’t matter, since the remedy is suppression, and if there is a bomb in a city, the primary concern is to stop the bomb, not gather evidence to convict the bomber. And third, doctrines aren’t grounded on fantasy scenarios, but the predominant scenarios. After all, it’s also possible aliens will invade, or a meteor will strike earth, and yet that doesn’t form the foundation for jurisprudence.

    2. AlphaCentauri

      The same technological advances that have created this constitutional question have also made it much more possible to obtain emergency warrants. You can certainly get a warrant much faster than you can bring in a technician to extract and decrypt the data on the phone.

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