Supreme Court Ruling on Cell Phone Privacy: Encouraging for Privacy

At the end of its 2013-14 session, the Supreme Court stood up for privacy in a case involving cell phones. In Riley v. California, http://www.supremecourt.gov/opinions/13pdf/13-132_8l9c.pdf, the Court held that the police cannot search a cell phone’s contents incident to an arrest without a search warrant. As a result of this ruling, when the police arrest someone, perhaps for a traffic violation, a misdemeanor, or even a serious crime, all information in a cell phone should not be automatically accessible to the police without any further review. Police must obtain a search warrant.

Not only was the result terrific, but the decision was unanimous. For those interested in the entrails of the Fourth Amendment, there is much to consider in Chief Justice Roberts’ opinion. For our purposes, we found the Court’s take on cell phones to be most encouraging. The Court recognized the central role that cell phones play in our lives and the vast range of information that the phones maintain. Here’s a key quote from the case:

Cell phones differ in both a quantitative and a qualitative sense from other objects that might be kept on an arrestee’s person. The term “cell phone” is itself misleading shorthand; many of these devices are in fact minicomputers that also happen to have the capacity tube used as a telephone. They could just as easily be called cameras, video players, rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps, or newspapers.

Looking through the contents of a cell phone is like examining many of the intimate details of our personal lives. The Court understood the technology and adjusted its view of the Fourth Amendment accordingly to fit. That is a positive development.

There is always a lot to chew on in any Supreme Court decision. What strikes us as most important is what the decision implies for the future. Most of us will not be arrested, but we will continue to live our lives using heavy doses of technology. Will the Supreme Court recognize how technology has changed other fundamental aspects of our lives and adjust the law in the same way?

On this issue, we found some interesting blogs by others. Susan Freiwald, Professor of Law, University of San Francisco School of Law, offered two insightful observations. She wrote:

First, the Court refused to credit the government’s explanation of the technological challenges it faced, and, instead, relied on its own sophisticated understanding. Second, the Court recognized the need to evaluate how new technology presents new answers to the inquiries behind the precedents. https://www.acslaw.org/acsblog/riley-v-california-a-savvy-supreme-court-recognizes-the-cyber-difference.

Both observations are encouraging. The Court is not automatically accepting what the government tells it about technology, and the Court sees that precedent must adjust to technology.

But another comment, this one by Margot Kaminski, Assistant Professor of Law at The Ohio State University Moritz College of Law, was not nearly as positive about the decision’s possible long-term impacts. Kaminski observed that the same day the Court decided Riley, it also decided the Aereo case, a case involving a service that allows subscribers to watch television programs over the Internet at about the same time as the programs are broadcast over the air. http://www.supremecourt.gov/opinions/13pdf/13-461_l537.pdf.

Aereo is a copyright case, not a prime concern here at the World Privacy Forum. What Kaminski observed is that unlike Riley, the Court did not embrace the new technology that Aereo employed, instead analogizing its service to cable TV, and as Kaminski put it, the Court “resolutely refused to address how its holding applies to other [paradigm-shifting] technologies.”

Maybe Riley was just a cell phone case, and it says little or nothing about the Court’s view of other modern technologies. Maybe Aereo was just a battle between companies over the marketplace share, and the Court stayed on the side of the traditional players. As seems to be the case more often than not, it will take more litigation to tell.

There may be another way out. Justice Samuel Alito filed a concurring opinion in Riley in which he noted the need for clearer rules regarding searches incident to arrest. He observed that it would take many cases and many years for the courts to develop more nuanced rules with respect to electronic devices. He called on Congress and state legislatures to step up to the plate and respond to the technological changes by enacting new laws.

Alito’s request for legislation seemed limited to cell phone searches incident to arrest. We’d like to see legislatures go much further and revise existing laws that are technologically out of date. Our list includes the Fair Credit Reporting Act, the Privacy Act of 1974, and the Electronic Communications Privacy Act. To say that we are not hopeful is a distinct understatement.

Meanwhile, we are happy enough about Riley, no matter what its longer term implications may be.

Posted July 1, 2014 in Blog Post, Mobile Privacy
Tags: Cell phones, Riley v. California, SCOTUS

New Report: Risky Analysis: Assessing and Improving AI Governance Tools

We are pleased to announce the publication of a new WPF report, “Risky Analysis: Assessing and Improving AI Governance Tools.” This report sets out a definition of AI governance tools, documents why and how these tools are critically important for trustworthy AI, and where these tools are around the world. The report also documents problems in some AI governance tools themselves, and suggests pathways to improve AI governance tools and create an evaluative environment to measure their effectiveness. AI systems should not be deployed without simultaneously evaluating the potential adverse impacts of such systems and mitigating their risks, and most of the world agrees about the need to take precautions against the threats posed. The specific tools and techniques that exist to evaluate and measure AI systems for their inclusiveness, fairness, explainability, privacy, safety and other trustworthiness issues — called in the report collectively AI governance tools – can improve such issues. While some AI governance tools provide reassurance to the public and to regulators, the tools too often lack meaningful oversight and quality assessments. Incomplete or ineffective AI governance tools can create a false sense of confidence, cause unintended problems, and generally undermine the promise of AI systems. The report contains rich background details, use cases, potential solutions to the problems discussed in the report, and a global index of AI Governance Tools.
National IDs Around the World — Interactive map

About this Data Visualization: This interactive map displays the presence...
Report: From the Filing Cabinet to the Cloud: Updating the Privacy Act of 1974

This comprehensive report and proposed bill text is focused on the Privacy Act of 1974, an important and early Federal privacy law that applies to the government sector and some contractors. The Privacy Act was written for the 1970s information era -- an era that was characterized by the use of mainframe computers and filing cabinets. Today's digital information era looks much different than the '70s: smart phones are smarter than the old mainframes, and documents are now routinely digitized and stored and perhaps even analyzed in the cloud, among many other changes. The report focuses on why the Privacy Act needs an update that will bring it into this century, and how that could look and work. This work was written by Robert Gellman, and informed by a two-year multi-stakeholder process.