By Noah Marks
Part 2 in a 2-part series
Editor’s note: At the author’s request, this post has been revised substantially since its original posting to more clearly express the author’s intent.
Earlier today, the Supreme Court issued an opinion covering both Riley v. California and United States v. Wurie, holding that police must obtain a warrant before searching cell phones. Even though the decision ostensibly resolved both cases, the Court’s reasoning and rhetoric clearly focused on Riley, the more egregious breach of privacy where police repeatedly and extensively explored a suspect’s smart phone. The Court spent comparatively little time on Wurie, despite its salient distinguishing features: it involved a non-smart flip phone and a significantly more limited search. Riley is rightly being hailed as a decisive, landmark, and compelling defense of privacy in the digital age. Unfortunately, the Court’s failure to address Wurie’s differences casts an unnecessary shadow over its decision by potentially blurring the distinction between physical and non-cell phone digital devices and creating anomalies in police practice.
The Court dismissed the dramatic differences in technological capabilities apparently on the basis that the divergence between cell phones and any other physical object that could be on someone’s person dwarfs any divergence between types of cell phones. The Court said that the privacy concerns tower over the interest of law enforcement because cell phones pose no risk to police and are capable of storing an astonishing breadth, depth, quality, and quantity of information. From the Court’s perspective, all cell phones can contain every piece of mail from the past months, every picture ever taken, every book and article read, numerous websites visited and illnesses endured, apps downloaded, nearly every location visited, not to mention addresses and phone numbers for thousands of entries. Indeed, the Court distinguished these cases from pen registers in Smith v. Maryland because “cell phone” is a misnomer. The Court enumerates equally accurate names including cameras, video players, calendars, tape recorders, libraries, diaries, albums, televisions, maps, or newspapers. [Read more…] about Unfortunately, Resolving Wurie Perfunctorily may Weaken Riley