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The Supreme Court’s Most Important Decision Wasn’t Hobby Lobby

Supreme Court Justices 2

A post by Conor Friedersdorf pointed me to a piece by Politico’s Josh Gerstein that I had missed discussing the impact that the Supreme Court’s ruling on the cell phone search casesRiley v. California and United States v. Wurlie, could have for the ongoing battles over the National Security Agency’s surveillance programs:

Chief Justice John Roberts’s 28-page paean to digital privacy was like music to the ears of critics of the NSA’s metadata program, which sweeps up details on billions of calls and searches them for possible links to terrorist plots.

“This is a remarkably strong affirmation of privacy rights in a digital age,” said Marc Rotenberg of the Electronic Privacy Information Center. “The court found that digital data is different and that has constitutional significance, particularly in the realm of [the] Fourth Amendment…I think it also signals the end of the NSA program.”

Roberts’s opinion is replete with rhetoric warning about the privacy implications of access to data in individuals’ smart phones, including call logs, Web search records and location information. Many of the arguments parallel, or are virtually identical to, the ones privacy advocates have made about the dangers inherent in the NSA’s call metadata program.

Modern cell phones, as a category, implicate privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet, or a purse,” the chief justice wrote in an opinion that concluded police nearly always need a warrant to look through a phone or similar device. “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.”

For the NSA debate, the most significant idea in the court’s Wednesday opinion may be the notion that scale matters. Roberts and his colleagues soundly rejected arguments from the Obama administration that because police can search a few printed photographs found in someone’s wallet, officers were free to search thousands of images and the troves of other personal data contained on a typical smartphone.

Government lawyers engaged in the NSA fight have pointed to a 1979 Supreme Court ruling that approved the use of a trap-and-trace device put on a single phone line to investigate harassing phone calls. That decision, those attorneys say, means there is no constitutional problem with authorities assembling data on many — or even all — calls made in the United States.

Critics have said the two situations bear little resemblance to one another, in part because of the huge difference in scale.

“It’s very important that the court is recognizing that quantity matters,” said Georgia Tech professor Peter Swire, a privacy expert and member of a panel President Barack Obama set up to review the NSA’s call metadata program. “The court has said that quantity matters when it comes to the content of cell phones. And I believe the court will feel the same way when it comes to massive databases of telephone calls or computer communications.”

A former cybercrime prosecutor said the justices also seemed to recognize that scale of the collection not only gives the government more data, but also the ability to be much more intrusive than in earlier eras.

“The distinction here is more than just the capacity of the device to hold pictures,” said Alex Southwell, now with law firm Gibson, Dunn & Crutcher. “A cell phone is orders of magnitude different, not just in terms of numbers of items held but also in terms of the intrusiveness if searched. The mosaic of information available from seeing the whole of the data is transformative, just like the call records at issue in the NSA program.”

The NSA metadata debate and the cell phone debate are, obviously, not completely analogous. Unlike the data that is contained on a cell phone or smartphone, the metadata that the NSA gains access to as part of its surveillance programs is not under the control of the person who would be asserting a Fourth Amendment right.  In general, that lack of control has led courts to rule that there is no reasonable expectation of privacy that would lead to the requirement that the government obtain a search warrant. The most important case in this area, at least as it has been applied to technology up until this point, is Smith v. Maryland. In that case, the Supreme Court held that the installation of a pen register, a device capable of tracking all the numbers called by a particular telephone that is installed at a telephone company switch station rather than anywhere on the property of a potential suspect is not a search within the meaning of the Fourth Amendment, thus meaning that police do not need to get a search warrant in order to have such a device installed.

Smith remains good law to this day and, at least on a cursory examination, would appear to completely authorize the NSA’s data mining programs. After all, if it is permissible for the government to use a pen register without a warrant then surely it would authorize what the NSA does, right? Ostensibly, the answer to that question should be yes as long as Smith remains good law, or to the extent that it is still good law when applied to modern technology and modern ideas of what constitutes an individuals zone of privacy. Even before the cell phone cases were argued before the Supreme Court, though, one Federal Judge ruled otherwise, holding that the NSA’s programs were likely unconstitutional. In that case, Judge Richard Leon of the U.S. District Court in Washington, D.C. essentially found that the Court’s holding in Smithwas not applicable to the case before him because it was dealing with the entirely different communications world of the late 1970s and early 1980s and that, today, Americans do have an “expectation of privacy” in the metadata that their phone company complies about them.

Amy Davidson points out the relationship between this argument against the NSA’s surveillance program and the Court’s decisions in Riley and Wurlie:

Since the Snowden revelations, we have been constantly reassured that much (though not all) of what the government collects without a warrant is “just” metadata—and what could be the harm in that? Metadata is supposedly distinguishable from content—it is information about a communication, the labels affixed to it, the addresses and the contacts, the times and the dates, and perhaps the locations. The reply is that an enormous amount can be learned from putting pieces of metadata together, and an awareness of that is present in Riley v. California and its companion case, United States v. Wurie. After the police took Brima Wurie’s phone, they saw calls from a number that came up as “My House”; that was used to connect him to evidence found at the address associated with the number. Police looking at Riley’s phone saw that some names on his contact list were designated “CK,” which they took to be shorthand for “Crip killer,” and part of their evidence for his affiliation with the Bloods gang. (Another piece of evidence was a photo on his cell phone of Riley with yet another car, a red Oldsmobile—the Blood’s color—that had been at the scene of a gang shooting.) “We also reject the United States’ final suggestion that officers should always be able to search a phone’s call log, as they did in Wurie’s case,” Roberts wrote, noting that “the Government relies on Smith v. Maryland”:

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.

Granted, it is not at all clear that the Court would view metadata the same way that they are viewing data on a phone. However, what I think makes the joint Riley/Wurlie significant is the fact that it appears to be the beginning of a recognition by the Court that the rules set down by Smith don’t really work in the modern era unless you want a result that gives law enforcement far more power to look into the private lives of citizens than they have ever had before, not because the law changed but because society, technology, and the way we view what is “ours” has changed significantly.  In the cell phone cases, the Court took the first step toward recognizing that fact.

This is why I think that Riley and Wurlie are likely to come to be viewed as perhaps the most significant decisions that the Court handed down in its October 2013 Term. Yes, Hobby Lobby is likely to resonate for many years to come, and the consequences of that decision are just not starting to become apparent. However, these cell phone cases will have implications for a wide ranging area where the law bumps up against new technologies, and they will impact pretty much every person in the country in one way or another.. For example, what expectation of privacy does someone have to data stored in the cloud, or to email and private financial information stored on third-party servers? What about the question of whether or not police must obtain a warrant in order to track the location of your phone, tablet, or computer via GPS or other means, or whether someone can be forced to reveal the password necessary to decrypt their computer’s hard drive? Those last two issues are already being dealt with by Federal Courts, as I discuss at the links. While we cannot know how the Courts will ultimately deal with these and other issues that we have yet to imagine, the good thing about the decision in Riley/Wurlie is that the Court seems to have started this new area of the law off on the right foot.

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About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. Franklin says:

    While I generally agree on the relative importance of each decision, how many people are aware that the Hobby Lobby decision was significantly changed after most of the reporting was done? That whole thing about the HHS or other insurance providing the coverage instead of Hobby Lobby? Yeah, they’re not actually going to be allowed to do that: Link

    Like or Dislike: Thumb up 12 Thumb down 1

  2. grumpy realist says:

    I’d say that the CLS Bank decision will have just as far-reaching ramifications….just as soon as we can figure out what SCOTUS decided!

    Good luck trying to get a patent application involving business methods implemented on a computer through the USPTO. I think they’ve all gone poof.

    Like or Dislike: Thumb up 2 Thumb down 0

  3. Hal_10000 says:

    @Franklin:

    No, they will be allowed to do that. The decision was that Wheaton would get a temporary injunction from massive fines because they filed a letter to ask to be excluded instead of filling out the form. They granted a similar injunction to Little Sisters of the Poor unanimously.

    Like or Dislike: Thumb up 0 Thumb down 3

  4. PAUL HOOSON says:

    Unfortunately, after an arrest for nearly anything, obtaining a search warrant from a judge is not impossible and a massive fishing expedition will then occur. – Some people aren’t wise what they post on social media, which police can search on any public computer to get a search warrant for evidence on the cell phone.

    Several years ago, my brother responded to an ad on Craigslist, where some guy had a used car for sale. My brother had no idea that the house was under police watch for suspected drug activity. My brother talked to the guy, but didn’t like the car, so didn’t buy it. On the way out the door to his car, my brother was violently physically assaulted by a policeman who was sure that my brother went to the house to buy drugs, which he certainly did not. The policeman attempted to beat a confession out of my brother and find drugs which he did not. He then told my bloody brother who he had injured his back to just leave. No arrest was made. – My brother sued the police, but a jury let the policeman go with the reasoning that it was acceptable for police to beat or torture persons who have not been arrested for any crime as a normal “fishing expedition” looking for evidence of some wrongdoing, which seemed like an outrageous premise.

    Getting a search warrant to search a cell phone isn’t difficult, but the Supreme Court ruling is important because it does require government to ask for a specific item when searching an individual’s life and may stop wide net mass computer searches of individuals for issues other than national security matters.

    Like or Dislike: Thumb up 2 Thumb down 0

  5. bill says:

    wow, so all that whining last week about hl not having to pay for 4 out of 20 forms of birth control was just a hissy fit!? thought so.
    regarding the cell phone search warrant issue- i think they’ll have a judge “on call” 24/7 to deal with the need for it-it’s something at least to keep the cops from surfing through your phone.

    Like or Dislike: Thumb up 0 Thumb down 9

  6. Jeremy R says:

    From the Davidson quote:

    The reply is that an enormous amount can be learned from putting pieces of metadata together, and an awareness of that is present in Riley v. California and its companion case, United States v. Wurie. After the police took Brima Wurie’s phone, they saw calls from a number that came up as “My House”; that was used to connect him to evidence found at the address associated with the number. Police looking at Riley’s phone saw that some names on his contact list were designated “CK,” which they took to be shorthand for “Crip killer,” and part of their evidence for his affiliation with the Bloods gang. (Another piece of evidence was a photo on his cell phone of Riley with yet another car, a red Oldsmobile—the Blood’s color—that had been at the scene of a gang shooting.)

    All of her examples are content pulled from searching a suspect’s phone, and are not at all analogous to NSA Patriot Act section 215 phone record collection. Section 215 collection involves telephone company call records excluding name/address/financials of the customer, excluding contents of any communication, and excluding cell site location information.

    Like or Dislike: Thumb up 1 Thumb down 0

  7. Tyrell says:

    That ruling may give encouragement to those concerned about those data collection boxes on cars.

    Like or Dislike: Thumb up 0 Thumb down 0

  8. C. Clavin says:

    Maybe…we’ll see what you think when the full ramifications of the HL abomination come to fruition…especially when it is in turn used as a precedence for other, equally as retarded, much further reaching opinions.
    even before that…90% of the nations corporations now have carte blanche to do whatever they want…and simply cover it with religious orientation claims.
    The HL case is just the beginning.

    Like or Dislike: Thumb up 6 Thumb down 3

  9. Hal_10000 says:

    @C. Clavin:

    The Court specifically said that each case has to be handled on an individual basis (which is why the would not rule on vaccinations or blood transfusions or anything else). Furthermore, a huge point of discussion in court and in both opinions was whether such beliefs are sincerely held. This is the reason you can’t suddenly a claim a religious belief against paying taxes. So no, 90% of companies can’t use religion to do whatever they want.

    That’s why Doug is right that the Riley decision may be the more significant. It is a far broader ruling, is a constitutional ruling (as opposed to HL, which was a ruling on conflicting laws) and was unanimous. As I said when the decision was handed down, this could be a Miranda for the digital age … IF the Court continues in that vein. That’s a big if, unfortunately.

    Like or Dislike: Thumb up 1 Thumb down 2

  10. C. Clavin says:

    @Hal_10000:

    Furthermore, a huge point of discussion in court and in both opinions was whether such beliefs are sincerely held.

    On page 37 of the HL Opinion Alito quotes Smith (Employment Division, Department of Human Resources of Oregon vs. Smith, 494 U.S. 872) to specifically say that the court does not care if religious beliefs are sincere.
    So yes…90% of the corporations in America are free…if you follow the logic of the HL Opinion…to do whatever they want.
    As I stated above…this opinion will now be used as precedent in much further reaching opinions. That is the pattern of the Roberts Court. And that’s why I think this will be bigger than Riley.
    From Jeffrey Toobin:

    In the 2009 case of Northwest Austin Municipal Utility District Number One v. Holder, the court upheld a challenge to an application of Section 5 of the Voting Rights Act. Chief Justice Roberts’s decision was “narrow,” and it even drew the votes of the court’s more liberal members. Four years later, though, Roberts used the Northwest Austin precedent as a wedge to destroy both Section 4 and Section 5 of the Voting Rights Act, as well as much of its effectiveness, in the case of Shelby County, Alabama v. Holder.

    http://www.newyorker.com/online/blogs/newsdesk/2014/06/hobby-lobby-the-supreme-courts-narrow-decisions.html

    Like or Dislike: Thumb up 4 Thumb down 1

  11. Tony W says:

    I predict the NSA (and others) will simply take a Worcester v. Georgia “let him enforce it” stance.

    Oh, and the NSA already predicted that I would predict that.

    Like or Dislike: Thumb up 1 Thumb down 1