Crowell & Moring

Recently, Louisa Marion and I analyzed the Supreme Court’s far-reaching decision in Riley v. California, 573 U.S. __ (2014), and its implications going forward. In Riley, Chief Justice Roberts concluded that today’s cell phones (which the Court called “minicomputers”) are fundamentally different than physical containers: their storage capacity is virtually unlimited; they contain a broad variety of information (photographs, texts, personal contacts, financial information, geolocation information, and search history, among others); they have long memories (often containing information predating the devices themselves); and they are gateway devices (that is, a portal to limitless other information, often through apps connected to the Cloud). The Court also found that traditional government interests in officer safety and preventing evidence destruction have little force when juxtaposed with the nature and scope of digital devices. These determinations are a sea-change for digital privacy, and implicate the treatment of electronically stored information in situations far beyond a cell phone in an arrestee’s hand. The decision, grounded in our Founding generation’s 18th century abhorrence of general warrants, is a reaffirmation of individual privacy rights against government intrusion, and leaves very little wiggle-room for warrantless searches of modern cell phones. In holding that “minicomputers” are subject to a different set of rules than physical containers, the Court has brought the Fourth Amendment into the digital age.

This article was reproduced with permission from Digital Discovery & e-Evidence, 14 DDEE 345, 07/17/2014. Copyright © 2014 by The Bureau of National Affairs, Inc.