Friday, December 9, 2016
David A. Harris (University of Pittsburgh - School of Law) have posted Riley v. California and the Beginning of the End for the Third-Party Search Doctrine (University of Pennsylvania Journal of Constitutional Law, Vol. 18, p. 895, 2016) on SSRN. Here is the abstract:
In Riley v. California, the Supreme Court decided that when police officers seize a smart phone, they may not search through its contents -- the data found by looking into the call records, calendars, pictures and so forth in the phone -- without a warrant. In the course of the decision, the Court said that the rule applied not just to data that was physically stored on the device, but also to data stored "in the cloud" -- in remote sites -- but accessed through the device. This piece of the decision may, at last, allow a re-examination of the third-party search doctrine, which originated in the U.S. v. Miller and Smith v. Maryland cases of decades ago. Those cases said that information handed over to a third party -- banking information and documents processed through a bank, in Miller, and a telephone number dialed and processed through a telephone company, in Smith -- loses any Fourth Amendment protection. While not overruling these cases, Riley throws their rationale -- unrealistic when decided, but hopelessly outdated now, in the digital age -- open to question, and shows the way toward the end of the third-party search doctrine.