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Digital Discovery
& e-Evidence
®
Reproduced with permission from Digital Discovery & e-Evidence, 14 DDEE 399, 8/14/14. Copyright 姝 2014 by
The Bureau of National Affairs, Inc. (800-372-1033) http://www.bna.com
Search and Seizure
Riley’s Implications on Future Jurisprudence
and Fourth Amendment Discussed in Webinar
panel discussing the recent U.S. Supreme Court
decision Riley v. California, 2014 BL 175779, U.S.,
No. 13-132 (06/25/14) was unanimous in its conclusion that the case would have far-reaching implications for future jurisprudence. The discussion took
place on Aug. 5 during a webinar presented by
Bloomberg BNA and was moderated by Digital Discovery & e-Evidence Report Advisory Board Chair Ronald
J. Hedges, of Ronald J. Hedges LLC.
The faculty included the Honorable Paul W. Grimm,
U.S. District Judge for the District of Maryland, Justin
P. Murphy, of Crowell & Moring LLP, Kevin P. Nugent,
of Discovia, and the newest member of the Digital Discovery & e-Evidence Report Advisory Board, The Sedona Conference威 Deputy Executive Director Kenneth
J. Withers.
A
Cases That Preceded Riley Discussed. Hedges asked
the panelists to discuss Riley, its recurring themes and
its implications for the future of litigation in the context
of technology and digital evidence. He began the conversation by noting Riley is, in effect, the third decision
the Supreme Court has issued since 2010 discussing advanced technologies. Ontario v. Quon, U.S., No. 081332, (6/17/10), addressed the Fourth Amendment in
terms of the relationship between public employers and
employees of public entities, Hedges said (10 DDEE
196, 6/24/10). United States v. Jones, U.S., No. 10-1259
(01/23/12), which Hedges deemed the ‘‘tracking decision,’’ also discussed the Fourth Amendment, in the
context of whether GPS tracking constitutes a search
under the Amendment (12 DDEE 40, 2/2/12).
Riley Signals New Digital Revolution. Hedges explained
that Quon was interesting because it discussed the need
for the Court to ‘‘proceed with care’’ when dealing with
the concept of privacy expectations in communications.
Hedges asked Murphy to discuss the fact that the Supreme Court has decided that the implications of at
least one emergent technology—cell phones—has become clear.
Murphy described Riley as an opinion ‘‘that brings together
and
harmonizes
two
earth-shattering
revolutions—the American Revolution and the digital
revolution.’’ Murphy said that the Court held that we do
not sacrifice the right to be free from unreasonable government intrusion simply because technological advances allow us to store or carry the details of our priCOPYRIGHT 姝 2014 BY THE BUREAU OF NATIONAL AFFAIRS, INC.
vate lives on small devices (14 DDEE 318, 7/3/14) (14
DDEE 345, 7/17/14).
‘‘Riley resolved years of inconsistent lower court decisions,’’ Murphy noted in his discussion.
Physical Attributes and Historical Underpinnings. Murphy addressed several recurring themes from the decision, including t that digital devices are different from
traditional physical containers, cell phones are akin to
minicomputers, and cell phones are considered gateway devices in that they are portals to information
stored elsewhere. He also noted that the Court’s decision held historical underpinnings in that it stemmed
from the Founding Father’s abhorrence for general
warrants.
‘‘Chief Justice Roberts noted that modern cell phones
are now such a ‘pervasive and insistent part of daily life
that the proverbial visitor from Mars might conclude
that they were an important feature of human
anatomy,’ ’’ Murphy said, citing the decision.
The fact that the Court aligned cell phones with minicomputers and gateway devices—and that searches of
those items are different than those of physical
containers—was one of the most important and farreaching aspects of the decision, Murphy said.
‘‘The Court concedes that we are indeed in a new
digital age,’’ Murphy told the audience.
Cell Phones Differ From Traditional Physical Containers.
Murphy noted that cell phones are different from physical containers because when you search a cell phone
you know that you will find data, which in turn effects
the government argument that warrantless searches are
justified for guaranteeing officer safety.
The Court addressed the government’s argument that
searching a phone could alert officers that accomplices
may be arriving on the scene. Murphy said the Court
found that argument was unimpressive, noting the issue
at hand in a search incident to arrest is the arrestee’s
affect on officer safety, not that of other parties.
Murphy also addressed the government argument
that evidence may be destroyed in the time it takes officers to get a warrant.
‘‘In terms of potential remote wiping or encryption,
the officer can turn off the phone, take out the battery
or place it in a Faraday bag,’’ Murphy said.
Decision Not ‘Absolute.’ However, Murphy did warn
that the decision is not ‘‘absolute’’ and that privacy does
come at a cost. Murphy noted that the exigency of a
situation may make a warrantless search objectively
reasonable. He cited the hypothetical situation in which
there is a need to prevent imminent destruction of eviISSN 1941-3882
2
dence, or imminent injury or assist where injury has already occurred.
‘‘While the opinion focuses quite a bit on new technologies and what those technologies can access, the
Court echoes the beliefs and values that our Founding
Fathers developed hundreds of years ago,’’ Murphy
concluded. ‘‘The Fourth Amendment was the Founding
Generation’s response to the reviled general warrant of
the colonial era.’’
Judge Grimm added that Riley provides a fascinating
example of the evolution in the Court’s thinking when
dealing with modern digital technology. Withers noted
that the hesitation from four years ago in Quon, in
which the Court appeared fearful to tread into areas of
technology, is gone.
‘‘This opinion really reflects Justice Sotomayor’s concurrence in United States v. Jones, where she said we
really must look at these issues from a modernist perspective as to what actually is the role of this technology in today’s society,’’ Withers explained.
Underlying Assumption of Expectation of Privacy. Withers said the most important element of the decision is
what the opinion does not say. According to Withers,
there is an underlying assumption that there is a reasonable expectation of privacy in the data that individuals have on their cell phones.
‘‘This represents a huge shift,’’ Withers said. ‘‘In five
years the Court has gone from a very 20th-century view
of privacy, to being hesitant about analyzing these topics, to Jones speculating that we should take this up today, to actually taking the topic up.’’
Judge Grimm agreed, stating we are in a new era of
awareness that the old Fourth Amendment method of
analysis where issues are analogized to non-digital circumstances as a method of creating a frame of reference to resolve an issue is likely over.
Other Sources of Digital Information Likely Effected.
Hedges asked Withers to discuss whether the ‘‘qualitative’’ and ‘‘quantitative’’ differences between cell
phones and physical containers identified by Chief Justice Roberts ‘‘carry over’’ into other ‘‘sources’’ of electronic information.
Withers said that the ability for sources to communicate to each other today, and to provide a clear picture
of the users and the owners, is a power that did not exist in earlier technology.
‘‘These differences between cell phones and physical
containers are going to carry over into everything as we
become more connected,’’ Withers said. ‘‘The quality of
data and quantity of data being collected is remarkably
different from five years ago.’’
Search Incident to Arrest Doctrine Remains. Hedges
then asked Murphy to discuss what was left of the
‘‘search incident to arrest’’ doctrine as applied to electronic devices.
8-14-14
‘‘I would argue the decision is very clear,’’ Murphy
explained. ‘‘Law enforcement still has the ability to ensure that the phone itself is not a weapon or is not concealing a weapon, but absent exigent circumstances,
you need to get a warrant.’’
Murphy said the Court was unanimous and ‘‘clear
and strong’’ on that point.
Hedges asked what might be considered ‘‘exigent circumstances’’ in the context of cell phones. Withers said
the court had tremendous difficulty in ‘‘conjuring up’’ a
hypothetical that would support the exigent circumstances exception.
‘‘That was one of the reasons the court said we
should not have a blanket rule justifying a warrantless
search,’’ Withers noted. ‘‘That being said, it might be
possible to describe a hypothetical where we have suspects captured on the road as they are fleeing from a
scene where there may be evidence or hostages or confederates and law enforcement wants to find out where
they came from, which may be informed by a smart
phone.’’
Effect on Data Voluntarily Surrendered to Third Parties.
One of the final topics Hedges asked the faculty to discuss whether Smith v. Maryland, 442 U.S. 735 (1979),
is still viable under Riley. Murphy explained that Smith
v. Maryland held that there is no privacy interest in data
voluntarily surrendered to a third party.
‘‘The Court’s concern in Riley about the pervasiveness of technology really seems to run up against Smith
v. Maryland,’’ Murphy said. ‘‘We are talking about technology that requires the disclosure of information to
third parties, such as GPS information.’’
Murphy noted that Smith was decided at a time when
phones were attached to cords, but cell phones today
can travel anywhere in the world. Third-party possessed information is a party of dail life, so much so that
many people do not even realize they are willingly surrendering that information.
Collection of Data From Devices Discussed. The webinar concluded with a discussion by Kevin Nugent on
the collection of data from cell phones and mobile devices from a forensic perspective. Nugent explained the
collection of data can prove challenging whether it be
via a physical collection from the device or a tower collection of data. Nugent said the technology required to
keep up with the software changes of cell phones often
poses a race-against-time strategy for data collection
where technology continues to advance at a rapid pace.
BY TERA BROSTOFF
To contact the reporter on this story: Tera Brostoff in
Washington at [email protected].
To contact the editor responsible for this story: Carol
Eoannou at [email protected].
COPYRIGHT 姝 2014 BY THE BUREAU OF NATIONAL AFFAIRS, INC.
DDEE
ISSN 1941-3882