Butler on Digital Privacy Rights

Alan Butler (Electronic Privacy Information Center) has posted Get a Warrant: The Supreme Court’s New Course for Digital Privacy Rights after Riley v. California (Duke Journal of Constitutional Law & Public Policy, Vol. 10, 2015) on SSRN. Here is the abstract:

The Roberts Court will likely be remembered for its decision to uphold the Affordable Care Act, its same-sex marriage-rulings, and its decisions in First Amendment and corporate-speech cases; but this Court should also be remembered for ushering in the era of digital Fourth Amendment rights. The Court has not only addressed how Fourth Amendment standards will apply to changing communications technologies, it has also gone out of its way to learn and understand how new technologies will affect the balance of power between the government and citizens. We have come a long way from Chief Justice Roberts’ question during oral argument in City of Ontario, California v. Quon: “[M]aybe everyone else knows this, but what is the difference between a pager and e-mail?”

In Riley v. California the Court answered — in a unanimous, nine- to-zero decision — the question of whether the police must obtain a warrant prior to searching an individual’s cell phone incident to a lawful arrest.

The Court said, simply and unequivocally, yes, “get a warrant.” Moreover, the Court directly addressed the impact of ever- expanding digital storage, the proliferation of smartphones, and the implications of encryption and access to cloud-based services. The opinion reflected the Court’s newfound understanding of modern communications technologies and their impact on civil rights. It stands as one of the strongest and clearest proclamations of Fourth Amendment rights in the Court’s history.

This article will explore the implications of the Riley decision on future Fourth Amendment cases, including cases challenging the bulk collection of telephone metadata. The article will review the background of Riley and the search-incident-to-arrest doctrine, and describe the new categorical rule adopted by the Court. The article will then consider how the Riley decision will affect lower court rulings on important Fourth Amendment issues: the scope of the search-incident-to-arrest and border-search exceptions, whether the collection of metadata and location information is a search, and the rules governing seizure of electronic records.