The Supreme Court’s 9-0 opinion that the police may not, without a warrant, “search digital information on a cell phone seized from an individual who has been arrested,” is an occasion for defenders of the Fourth Amendment to dance in the streets. Chief Justice Roberts’s majority opinion went further than even the most ardent friends of privacy had expected. “The Court made clear that the exceptions to the Fourth Amendment, carved out in the pre-digital era, are no longer tenable,” I was told by Marc Rotenberg of the Electronic Privacy Information Center, whose brief Roberts’s sympathetically cited. “Chief Justice Roberts even suggested that the search of a cell phone could be more intrusive than the search of a home.” As Jeffrey Fisher of Stanford Law School, the lawyer for the arrested suspect told me after the case came down, “The decision brings the Fourth Amendment into the digital age.”
On June 16, Fisher and Edward C. Dumont, the Solicitor General of California who argued the Riley case on the other side for the government, came to the National Constitution Center (where I’m president and CEO) for a debate about the stakes in the case. As the podcast of their debate makes clear, neither of the opposing lawyers anticipated such a sweeping victory for privacy. “The police need a simple, categorical, bright-line rule that they can apply in the field, and here, the bright-line rule is: if you have something on your person, the police can take a look at it and see whether it’s something that’s either dangerous or that is evidence of crime,” said Ed DuMont.
In response, Jeffrey Fisher compared searches of cell phones to the writs of assistance and general warrants that sparked the American Revolution.“[You can’t] very often say this in the Supreme Court, but it was actually one of the core rallying cries for the Constitution and for the Revolution,” Fisher said. “If an officer is able to look at the digital information on this device without obtaining a warrant, they’re conducting essentially the exact kind of search that was prohibited at the Founding—indeed, you might even think it’s more intrusive because unlike searching throughout somebody’s entire home, for example, on an arrest, a cellphone also gives a search of their doctor’s office, a search of their financial advisor, a search of their medicine cabinet, you can keep going—we think that that is reason why the Court, as a historical matter and a modern, pragmatic matter, should say that digital information is different.”
Dumont rejected the historical analogy. “I don’t think this is like writs of assistance,” he said. “You’re already in a completely different world than the writs of assistance because you’re talking about somebody who has been validly arrested for a particular crime.”
In his inspiring majority opinion, Chief Justice Roberts not only accepted Fisher’s analogy between cell phone searches and the writs of assistance: He eloquently extended it:
Our cases have recognized that the Fourth Amendment was the founding generation’s response to the reviled “general warrants” and “writs of assistance” of the colonial era, which allowed British officers to rummage through homes in an unrestrained search for evidence of criminal activity. Opposition to such searches was in fact one of the driving forces behind the Revolution itself. In 1761, the patriot James Otis delivered a speech in Boston denouncing the use of writs of assistance. A young John Adams was there, and he would later write that “[e]very man of a crowded audience appeared to me to go away, as I did, ready to take arms against writs of assistance.” 10 Works of John Adams 247–248 (C. Adams ed. 1856). According to Adams, Otis’s speech was “the first scene of the first act of opposition to the arbitrary claims of Great Britain. Then and there the child Independence was born.” Id., at 248 (quoted in Boyd v. United States, 116 U. S. 616, 625 (1886)).
The reference to the Boyd case is especially significance. Boyd held that subpoenas for private papers violate both the Fourth and Fifth Amendment, and it was hailed by Justice Louis Brandeis in his famous dissent in Olmstead v. U.S. as “a case that will be remembered as long as civil liberty lives in the United State.” Olmstead was a case where the Court, in 1928, upheld warrantless wiretapping of a suspected bootlegger; in his brilliant dissent, Brandeis insisted on translating the Fourth Amendment so it protects just as much privacy in the electronic age as the Framers took for granted in the 18th century. “The progress of science in furnishing the Government with means of espionage is not likely to stop with wiretapping,” Brandeis wrote. In a remarkable passage, he then anticipated the storage of digital data in cloud computers. “Ways may someday be developed by which the Government, without removing papers from secret drawers, can reproduce them in court, and by which it will be enabled to expose to a jury the most intimate occurrences of the home.” Brandeis, like Roberts, invoked James Otis’s objections to the writs of assistance and concluded, “In the application of a constitution, our contemplation cannot be only of what has, been but of what may be."
Squarely meeting Brandeis’s challenge, Roberts vividly described the ways that digital technologies are transforming privacy:
Although the data stored on a cell phone is distinguished from physical records by quantity alone, certain types of data are also qualitatively different. An Internet search and browsing history, for example, can be found on an Internet-enabled phone and could reveal an individual’s private interests or concerns—perhaps a search for certain symptoms of disease, coupled with frequent visits to WebMD. Data on a cell phone can also reveal where a person has been. Historic location information is a standard feature on many smart phones and can reconstruct someone’s specific movements down to the minute, not only around town but also within a particular building. See United States v. Jones, 565 U. S. ___, ___ (2012) (SOTOMAYOR, J., concurring) (slip op., at 3) (“GPS monitoring generates a precise, comprehensive record of a person’s public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations.”).
Roberts’s references to Justice Sonia Sotomayor’s concurring opinion in the Jones case, where the Court held 9-0 that the police may not attach a GPS device to a suspect’s car without a warrant and track his movements 24/7 for a month, suggests that all nine justices of the Roberts Court recognize that ubiquitous surveillance of our electronic data can reveal far more about us than the warrantless searches of the colonists’ homes that the Framers feared.
In her concurring opinion in Jones, Justice Sotomayor rightly called on the Court to re-examine the so-called third party doctrine, recognized in Smith v. Maryland, where the Court held that when individuals surrender data to a third party for one purpose, they abandon all expectations of privacy in the data for other purposes. As Justice Sotomayor recognized, in an age when most of our data is stored in third party databases, the third party doctrine means that we have no privacy in our digital data. In his majority opinion in Riley, Chief Justice Roberts rejected the government’s reliance on Smith v. Maryland to suggest that police officers should always be able to search a phone’s call log:
The Government relies on Smith v. Maryland, 442 U. S. 735 (1979), which held that no warrant was required to use a pen register at telephone company premises to identify numbers dialed by a particular caller. The Court in that case, however, concluded that the use of a pen register was not a “search” at all under the Fourth Amendment. See id., at 745–746. There is no dispute here that the officers engaged in a search of Wurie’s cell phone. Moreover, call logs typically contain more than just phone numbers; they include any identifying information that an individual might add, such as the label “my house” in Wurie’s case.
Now it’s time for the Court squarely to confront the fact that Smith v. Maryland threatens to eviscerate privacy in an electronic age and overturn the case entirely.
But that is a task for another day. For now, it’s thrilling that all nine justices of the Roberts Court have eloquently insisted on translating the Fourth Amendment to take account of new technologies. The Framers of the Fourth Amendment would have expected no less.
Jeffrey Rosen is the CEO and president of the National Constitution Center, and also the legal affairs editor of The New Republic. This article first appeared in The New Republic.
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