Privacy in the Digital Age – Does Cellphone Information Need a Warrant?

By Natasha Kang

Natasha Kang is a rising senior at University of California, Davis.

The Fourth Amendment and the issue of privacy have once again come into question at the Supreme Court; however, this time around, the question has different facets in an era of information-filled smartphones. On June 25, 2014, the Supreme Court set the tone for privacy in this digital age by holding that police cannot search the information on a cellphone seized from an individual who has been arrested. How this tone might proceed will certainly be a point of interest in the ongoing legal challenges to the National Security Agency’s spying operations started by Edward J. Snowden.

In Riley v. California, which the Court recently decided in late June, David Riley was charged with firing at an occupied vehicle, assault with a firearm, and attempted murder with the evidence obtained from his phone. [1] After initially stopping Riley for driving with expired registration tags, the officer searched Riley and a detective specializing in gangs uncovering incriminating photographs and videos. These photographs and videos revealed Riley’s involvement with the activity of the Bloods street gang, specifically a shooting that occurred a few weeks earlier.

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The Supreme Court’s unanimous decision on cellphone privacy was based on both the quantitative and qualitative differences of data. The Court recognized the capabilities of modern cellphones to store a virtually unlimited amount of information. This is no exaggeration—setting aside the emails from the account logged into a phone and the contacts recorded in the address book, a wealth of information exists in a phone’s image gallery alone. Nowadays, many people use their cameras to take pictures and screenshots of whatever they may need later – be it their bank account number, address, passport number, Social Security number, prescriptions.

The Court additionally examined the pervasive quality of data stored in cellphones. A combination of emails, contacts, text messages, pictures, and personal data used for applications would be more personal information that could ever be found in a single, physical record. In this digitalized age, the average person is carrying this cache of personal information in the form of a smartphone wherever they go.

The bottom line of Riley is put succinctly by Justice Roberts – get a warrant. [2] Getting a warrant for a search makes sense and all of the Supreme Court seems to agree from the unanimous decision handed down. However, not nine months ago, on November 18, 2013, this same Court denied certiorari to a petition that challenged the National Security Agency’s domestic surveillance program collecting the telephone records of millions of American citizens. [3]

Based on a document leaked by Snowden, the media has reported that the Foreign Intelligence Surveillance Court (FISA court) had secretly ordered the Verizon Business Network Services to turn over all of the telephone records of its customers. Electronic Privacy Information Center (EPIC), a privacy rights group, took an unusual legal path of going directly to the Supreme Court as its first appearance in the courts. The group, as a Verizon customer utilizing services for legal counsel, confidential sources, and other sensitive communications, argued that the FISA court had exceeded its narrow statutory authority to allow foreign intelligence surveillance in the ordering of the telephone records. [4]

The brief filed by EPIC put forth the argument that the Foreign Intelligence Surveillance Act does not authorize a sweeping warrant for all communications data. Before such a warrant, the law requires evidence of relevance to be shown for an existing investigation. Following this naturally, EPIC argued there was no way this is possible for telephone records collected for future investigations based on speculation.

Furthermore, the EPIC asked the Court to reconsider the “third party doctrine” from Smith v. Maryland. This doctrine acts to deny the protection of the Fourth Amendment for information people have chosen to share with others. [5] This information opens the door for the government to obtain information on personal relations, medical information, business relations, and more.

As usually the case with extraordinary direct appeals, the EPIC petition was denied by the Supreme Court. [6] However, with similar cases occurring in the lower courts as well as the Riley decision, the NSA may find a struggle in forming their defense.


[1] Riley v. California (2014).
[2] Mark Rotenberg and Alan Butler, “Symposium: In Riley v. California, a unaminous Supreme Court sets out Fourth Amendment for digital age,” SCOTUSblog, June 26, 2014, http://www.scotusblog.com/2014/06/symposium-in-riley-v-california-a-unanimous-supreme-court-sets-out-fourth-amendment-for-digital-age/.
[3] Petition regarding Electronic Privacy Information Center, http://www.supremecourt.gov/search.aspx?filename=/docketfiles/13-58.htm.
[4] Smith v. Maryland 442 U.S. 735 (1979).
[5] James Risen, “Privacy Group to Ask Supreme Court to Stop N.S.A.’s Phone Spying Program,” The New York Times, July 7, 2014, http://www.nytimes.com/2013/07/08/us/privacy-group-to-ask-supreme-court-to-stop-nsas-phone-spying-program.html?_r=1&.
[6] Adam Liptak, “Justices Reject Challenge to N.S.A. Program,” The New York Times, Noveember 18, 2013, http://www.nytimes.com/2013/11/19/us/justices-reject-challenge-to-nsa-program.html?_r=0.

Photo Credit: Flickr user Jason Howie