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Thursday, June 26, 2014

Richard Posner Gets Sassy; Scholars Bemused

Over at Slate, Judge Richard Posner writes about the Supreme Court's opinion in Riley v. California, where the Court held that police need a warrant before they can search a cell phone incident to arrest. Posner makes some interesting points about the history of the Fourth Amendment. But his discussion begins on an odd note:

The second case I want to discuss is Wednesday’s decision in Riley v. California, the cellphone case. The New York Times quotes a law professor as saying that “This is a bold opinion. … It is the first computer-search case, and it says we are in a new digital age. You can’t apply the old rules anymore.” No, the opinion is not bold, it’s not the first computer-search case, we are not in a new digital age, and the court is not applying new rules. There have been a number of similar cases in the lower courts, many anticipating the court’s decision.

I noticed a citation in the court’s opinion to a case from my court, United States v. Lopez-Flores, the name of which rang a bell. It was an opinion of mine issued in 2012, and when I reread it I realized it is almost identical to the Supreme Court’s opinion.
Posner is laying on some pretty heavy snark in the first paragraph, and it only escalates as the second paragraph begins. Orin Kerr, the professor quoted by Adam Liptak in the article Posner references, seems to think that the commentary may be a bit off the mark. He notes on Twitter, ":) In the context of the conversation w/Liptak, there was an implied limitation of 'at the Supreme Court.'"

That's it for the cute part of this post. Now, I'd like to say a little bit more about the legal substance of Posner's commentary.

I'm not sure that Posner's commentary on the case fully appreciates why Riley is so important. He goes on to write:

I mentioned in my opinion “an iPhone application called iCam [that] allows you to access your home computer’s webcam so that you can survey the inside of your home while you’re a thousand miles away. At the touch of a button a cell phone search becomes a house search, and that is not a search of a ‘container’ in any normal sense of that word, though a house contains data.” Whether police search the contents of the home while in the home, or search those contents on a cellphone’s screen, the invasion of privacy (though not of property) is the same. The Supreme Court’s decision accelerated a trend toward assimilating virtual to physical property for Fourth Amendment purposes that would eventually have brought the lower courts to the same point.
But Kerr notes that Riley is important not simply because it treats virtual property as physical property, but because it grants more protection to items containing virtual property. And going beyond the intrusion that Posner seemed to be contemplating in Flores-Lopez, under the Court's holding in Riley, a police officer does not need to access an app on a cell phone that peers into a suspect's home to implicate this increased protection. The Court points out that cell phones are different from physical containers because they contain far more information than any typical container would:

In 1926, Learned Hand observed (in an opinion later quoted in Chimel) that it is “a totally different thing to search a man’s pockets and use against him what they contain, from ransacking his house for everything which may incriminate him.” United States v. Kirschenblatt, 16 F. 2d 202, 203 (CA2). If his pockets contain a cell phone, however, that is no longer true. Indeed, a cell phone search would typically expose to the government far more than the most exhaustive search of a house: A phone not only contains in digital form many sensitive records previously found in the home; it also contains a broad array of private information never found in a home in any form—unless the phone is.
Police don't need to use a confiscated cell-phone to peer into somebody's house in order for the phone's contents to implicate increased Fourth Amendment concerns. The phone gets more protection because of its vast reserves of digital information.

In light of the Court's introduction of an increased level of protection for items containing digital information, I think that the hype surrounding the Riley opinion is well-founded. Kerr is correct to state that "You can't apply the old rules anymore."

UPDATE: 6/28/2014

I have changed one of my citations to Flores-Lopez. It was previously listed as Lopez-Flores. Interestingly, my Lopez-Flores error stemmed from my reading of Posner's article, where he incorrectly stated that the opinion he had written was entitled "Lopez-Flores." The quote where he does so is included in my original post, and I have left his citation to the case unedited.

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