No one supposes for an instant that the call data collected by NSA is admissible in evidence in criminal proceedings where the exclusionary rule, which is the subject of Riley, would unquestionably bar both that data and anything arising from an effort by police or prosecutors to consult it. That's one aspect of the strong distinction between intelligence services and criminal justice, or spooks and cops, in US (and pretty much only US) law. But that's not the same question by a light year as whether the Fourth Amendment in itself establishes a basis for award of an injunction to prohibit government activity, said to be necessary in the interest of national security and subject to judicial review under statutory standards, which results in collection of information by means that would undoubtedly result in exclusion if proffered in a criminal prosecution. The present draft conflates those questions, making an issue appear to hover. If it is a phantom, the second half of the draft should change. If it is not, the first half concerning Riley is immaterial, and the route to improvement is to use the space presently consumed by that discussion to meet the real issues in Klayman squarely.

Riley and the Tragedy of Part Four

-- By NealBurstyn - 06 Mar 2015

February

Professor Moglen has made it abundantly clear that he believes the Fourth Amendment to be a lost cause, a “timid contraption.” It protects only places and we do not live in places anymore. We will not get the Fourth Amendment to happen. It is buried deep in a dark February frozen hellscape, a frigid wasteland.

Perhaps it is naiveté or pure stubbornness, but I refuse to believe either that the Fourth Amendment is dead as it relates to data privacy or that it does not mean what I thought it meant. Professor Moglen leaves the class with no choice but to accept that (1) the First Amendment is our beacon of light and (2) that the Fourth Amendment has been rendered irrelevant.

But post- Riley, how true is the latter proposition? Is Professor Moglen correct that Riley was a good but grossly inadequate decision? In this paper, I would like to tease out the potential ramifications of Riley on data privacy in general and whether the death knell for the Fourth Amendment has been sounded prematurely. I am not going to suggest that Riley was in fact perfectly adequate, but merely that inside the four corners of the opinion one might find moments of solace.

Persons, Houses, Papers, and Effects (and Data?)

Stressing a cell phone’s ability to carry thousands of images and personal communications, have apps installed that can “form a revealing montage of the user’s life,” and contain the search and browsing history of the owner which “could reveal an individual’s private interests or concerns,” the Court found that “a cell phone search would typically expose to the government far more than the most exhaustive search of a house.” Granting police officers the OK to search the digital data on a cell phone would amount to giving them the “unbridled discretion to rummage at will among a person’s private effects.”

One could accurately assert that the Riley holding was quite narrow as it only forbids police officers from searching, incident to an arrest, the digital data stored on a cell phone without a warrant. But if we ignore the holding/dicta distinction and set aside the argument that Chief Justice Roberts was merely pontificating, perhaps an analysis of the Court’s logic and particular language could give Fourth Amendment nonbelievers pause.

The Fourth Amendment mandates that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” Thus we see that the house, i.e. the place, is afforded explicit protection. But to the extent that humans of the 21st Century are no longer tethered to the home, there Professor Moglen and the Court are in agreement. We do not live in places anymore. A cell phone search will typically reveal more than a ransacking of a person’s house.

The Court goes so far as to say that the data contained on a cell phone, such as a person’s browsing history and what apps they have installed, are a person’s private effects. The private effects that Fourth Amendment contemplates and the private effects that cannot be inspected without a warrant. That the Court considers search history and a phone’s call log (metadata) to be private effects protectable by the Fourth Amendment seems at odds with Smith v. Maryland which held that no warrant was required to identify phone numbers dialed. But the Court in Smith found that investigating a pen register was “not a ‘search’ at all under the Fourth Amendment.” It is for that reason the Riley Court was brief to say the least in its inquiry into the relevance of Smith. There was no dispute that the officers in Riley “engaged in a search” of the cell phone.

Putting aside the Court’s skirting of the issue, the applicability of Smith to the mass collection of metadata has recently come under attack. In Klayman v. Obama, the D.C. District Court found that there is a distinct difference between the “one-time, targeted request for data” in Smith and the current climate of indiscriminate data gathering. The court went on to describe the data gathering program as inimical to the proscription against “general warrants” enshrined in the Fourth Amendment and referenced by the Court in Riley. Although the court granted injunctive relief to the plaintiffs and entered an order barring the Government from the mass gathering of metadata as part of the NSA’s Bulk Telephony Metadata Program, the court stayed its order pending appeal. The case was argued on appeal in the D.C. Circuit Court of Appeals on November 4, 2014.

Regardless of how the D.C. Circuit eventually rules in Klayman, it is hard to imagine the case not reaching the Supreme Court. And once that happens, will the Court carry the unanimous Riley decision to its logical extreme? What is the conceptual difference between a police officer looking at a call log and browsing history on a cell phone and the mass gathering of metadata? How can Wurie have a reasonable expectation of privacy in the call log on his cell phone, but not in the call logs collected by whatever telecom company he uses? Given that the Court recognized the lack of placeness in a cell phone’s ability to make remotely stored data accessible, the cell phone being a physical object to be found on a person should be a nonissue.