Don’t Wurie. Be Happy

If you slept through yesterday, then there’s big news. The United States Supreme Court issued its opinion in Riley v. Caifornia and United States v. Wurie.  Within minutes, there was more commentary on the Riley (as it will be called, despite the fact that Wurie would have made the case name far more enjoyable and available for lulz), as Chief Justice John Roberts’ majority opinion, with a concurrence by Sam Alito, is one of those line-by-line stunners.

As descriptions and commentary already abound as to the opinion itself, with Orin Kerr and Josh Blackman doing yeoman’s work, together with about a million others, lawyers, lawprofs, non-lawyers, flounder fishermen, chiming in, there is no point in repeating what others have already said.

But there remains a critical point to be made about the Riley opinion, reflecting the concern raised in anticipation of the Court’s decision.

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.

The end result was shocking in its clarity:

Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans “the privacies of life,” Boyd, supra, at 630. The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought. 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.

The point was so stark that I was moved to add a piece of personal snark about it on twitter.  Apparently, a lot of people agreed.

No, this won’t spell the end of the government’s efforts to grab a quick and easy peek at the contents of our lives, as the DoJ has already begun spinning its “we’ll honor the decision, but” campaign to suggest that it will put its vast resources to work circumventing our privacy.  While Riley shuts down the search incident to arrest exception as to computers, there remains a laundry list of others still to be tried. Exigency immediately came to the top of the list, and I can’t wait to hear the government’s efforts to manufacture an argument to show how every search is exigent.  Hey, it worked with cars, right?

But there is a bigger, more foundational point coming out of Riley, and it’s too easy to miss the forest through the trees. A unanimous Supreme Court held that digital is different. Computers are different.  Smartphones are just baby computers, and they are different.

For the first time, the Supreme Court has held that the qualitatively different nature of the digital world from the physical world demands that they revisit well-settled precedent, the sort that’s passed from original rationale to blindly-applied rubric, and start fresh. Because digital is different.

One day, we will look back at Riley and see that it was the pivotal decision that recognized how technology, now an omnipresent reality in our lives, required a new jurisprudence from that developed over the years for the physical world.  No, it won’t change everything, but it does portend to give us a chance, a hope, that fresh, new law will be crafted to accommodate how it has altered our lives.

Up to now, I haven’t been a fan of Orin Kerr’s “equilibrium adjustment” theory of Fourth Amendment jurisprudence.  After reading Riley, Orin raised it again:

I’m biased on this, and so not a great observer, but I read the majority opinion as adopting the basic methodology of equilibrium-adjustment. The majority expressly contrasts the significance of the old rule “prior to the digital age,” and shows how it would create very different results today in light of technological change and social practice: “Allowing the police to scrutinize [cell phone stored records] on a routine basis is quite different from allowing them to search a personal item or two in the occasional case [prior to the digital age].” The implication of the old rule is different than it was before most people carried around a powerful computer in their pockets:

In 1926, Learned Hand observed (in an opinion later quoted in Chimel) that it is “a totally different thing to search a man’s pockets and use against him what they contain, from ransacking his house for everything which may incriminate him.” United States v. Kirschenblatt, 16 F. 2d 202, 203 (CA2). If his pockets contain a cell phone, however, that is no longer true. Indeed, a cell phone search would typically expose to the government far more than the most exhaustive search of a house: A phone not only contains in digital form many sensitive records previously found in the home; it also contains a broad array of private information never found in a home in any form—unless the phone is.

The rule has to change because the implications of the rule are now different: “The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought.”

As someone who views “equilibrium adjustment” as a dangerous, doctrinally empty methodology, I’m not biased in favor of it.  But I’ll be damned if I don’t think Orin is right this time.  And in this context, the Court ended up on the right side of the adjustment, essentially cleaning the slate and starting from scratch when it comes to how the Fourth Amendment applies to technology.

Sure, there will be disappointments ahead, as the Court’s shockingly astute grasp of how real people live and still expect some modicum of privacy is tested by every exception invented to stymie the harsh black letter law of the Constitution, but Riley gives us hope that they will recognize that the physical world precedent doesn’t apply, and they aren’t bound by a joint in a cigarette box anymore.

The war is by no means over, but at least we appear to be fighting on a battlefield that won’t be littered with a century of dead bodies.

10 thoughts on “Don’t Wurie. Be Happy

  1. Charlesmorrison

    I’m surprised at the vote talley and some of the language.

    I’m heartened that the two justifications launching Chimel and it’s progeny were identified as ridiculous in the context of cell phone data. A rare occasion where the government screamed “officer safety” and the court said, “nah, we don’t see that here, fellas. What else ya got?” Destruction of evidence? Highly unlikely. Logic prevailed.

    1. SHG Post author

      The Chimel rationales had long since been abandoned in Robinson in favor of a categorical rubric, which was the government’s argument to the Supremes. They not only said no, but said no unanimously and resoundingly. This is a complete break from the past. More than logic prevailed. They got it.

  2. Robert David Graham

    Even us flounder fisherman can recognize that SCOTUS “cleaned the slate” for ruling on modern technology.

    Those of us in the fishing industry have long had certain ideas about how to apply Fourth Amendment to modern fishing technology. We’ve been told we were wrong, because they didn’t jibe with Katz, Smith, and Miller. We are gratified that Riley repeats almost word for word our own ideas.

  3. Nigel Declan

    As much as Prof. Kerr seems to want to fit this decision into his new pet theory, it must still sting a bit for him to have the Supremes essentially reject his “technology neutral” Fourth Amendment approach out-of-hand in favor of creating a new, non-analogy-based rule as you suggested to the good professor many moons ago.

    1. SHG Post author

      Why yes, Orin has proffered a number of theories, tech neutral being one of them, which I have argued strongly against. But no need to rub salt in the wound, and it would be ungracious of me to say I told you so.

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