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:
Edit: Some more amici briefs from the comments:
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?