Harvard Law & Policy Review

fourth amendment

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Riley v. California: A Reply

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. [Read more…] about Riley v. California: A Reply

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Unfortunately, Resolving Wurie Perfunctorily may Weaken Riley

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

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The Fourth Amendment for the 21st Century

By Daniel Bogdan

Part 1 in a 2-part series

Editor’s note: At the request of the author, the title has been changed since the original publication of this post.

Today, in Riley v. California, the Supreme Court held that law enforcement officers may not search an arrested person’s cellphone incident to arrest without a warrant.  Ruling jointly along with United States v. Wurie, the Court held that an individual’s right to privacy under the Fourth Amendment outweighed the interest of law enforcement in conducting warrantless searches of cellphones incident to arrest.  This decision bodes well for the future of technological privacy of arrestees, and may change law enforcement’s procedures of arrest.

Upon the petitioner Riley’s arrest, the police searched his smartphone and found digital evidence potentially connecting him to a shooting, and charged Riley with attempted murder. Riley moved to suppress the evidence gathered from his cell phone, claiming the unwarranted search violated his Fourth Amendment rights. The Supreme Court held although an arresting officer may physically inspect the exterior of an arrestee’s cellphone to ensure their own safety, the data on a arrestee’s cellphone may not be searched without a warrant. The Court’s reasoning was that the interest of an individual’s privacy outweighed the Government’s interest in preventing possible remote data wipes or encryption mechanisms from foreclosing the acquisition of admissible evidence. [Read more…] about The Fourth Amendment for the 21st Century