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By Jake Laperruque
Editor’s note: Jake is responding to the original version of our second post on Riley v. California.
In my opinion, this post’s critique of the Riley decision is wrong for several reasons:
First, it complains that the Court did not draw an impossible distinction. There is no realistic way to make a legal distinction between smartphones and “dumb phones” (aka feature phones). Feature phones do have less memory for contacts, personal notes, photos, and files (audio, video, etc) than smartphones, but today many feature phones do possess these features. How can you make a distinction on this front? Should the Supreme Court establish a warrant requirement for devices that can store a set number of GB? If so, how could you ever establish a reasonable bright line, especially in light of technology constantly changing storage capacity and cloud usage? What about apps such as Facebook, which exist on feature phones and can effectively act as an email service? Yes, individuals can often label a phone as a feature phone or a smartphone, but it can be very difficult to draw a clear line between the two, and a “You Know It When You See It” Rule carried out by law enforcement during arrests to govern warrantless searches of items with sensitive information and communications would severely harm privacy rights. The Court did not obfuscate on this issue — they wisely recognized that to effectively make a distinction is impossible, and would have led to significant confusion and problems in the future.
Second, this post is backward-looking, rather than forward-looking. As discussed, portable electronic devices are constantly changing. But this is not a reason to make a piecemeal decision on different devices that exist (i.e., one rule for all smartphones and one rule for all feature phones) – it’s a strong reason to make a general rule that applies to all such devices. It’s difficult to predict how tech will develop, and impossible to craft a rule for uncreated electronic devices. Wearable tech is growing in popularity — we already see a range of fitness devices for sale, and in the future many could contain limited but extremely sensitive data, such as location information. Items like Google Glass may constantly sync with the cloud, creating further questions about direct vs. remote storage. If the Court had to make a distinct rule for every electronic device before it, we’d have years of legal uncertainty and continued litigation every time the police warrantlessly searched a new type of portable electronic device seized during an arrest. This uncertainty is not only a strain on courts, but also a direct harm to civil liberties, which will be violated in the interim when clear rules are not in place. I think the Court actually did make a clear ruling — a warrant is required for search of all electronic devices absent exigent circumstances — and was correct to do so.
Third, the post ignores the profound privacy implications of unwarranted searches of feature phones. Yes, feature phones contain much less data than smartphones, but that data can be highly sensitive. Contacts in a phone book — especially with additional notes, a feature the Court explicitly noted in its ruling — can reveal medical conditions, romantic relationships and sexual orientation, political beliefs and activities, and religious views. Feature phones usually store pictures, which can be extremely sensitive even if there are 100 rather than 1000 as in a smartphone; in both cases the quantity is on par with a photo album you would keep in a desk, not a single picture you’d hold in a wallet. Finally, feature phones generally contain thousands of text messages — these are the content of private communications; they are effectively indistinguishable from email, and increasingly take the place of phone conversations. This data — stored on feature phones — is certainly entitled to protection from warrantless search, and there is no reason to create a search incident to arrest exception for them. Even if there was a clear way to draw distinction between electronic devices in this case, I think the Court made a wise decision not to do so.
Jake is the Fellow on Privacy, Surveillance, and Security at the Center for Democracy & Technology, which submitted an amicus brief in the Riley case. Jake has previously written on the case and the issues it presents. You can follow him on Twitter at @jakelaperruque.