Originally published in Tikkun Daily
The Supreme Court unanimously ruled today in Riley v. California that digital privacy is protected by the Fourth Amendment, holding that law enforcement must produce a warrant to search an arrestee's cell phone or mobile device.
While this decision only addresses physical searches of a person's cell phone, Riley v. California may not-so-subtly be signaling that potential legal thorns exist for the NSA and the intelligence community, particularly after one specific sentence written by Chief Justice John Roberts, who authored the decision. However, before examining this aspect of the court's decision, first let's briefly examine how Riley v. California has unmistakably distinguished digital privacy as a Fourth-Amendment-protected entity when it comes to physical searches by police.
One of the most significant aspects of today's ruling was the court's distinguishing digital devices from other items a person might have on their person when searched by law enforcement. Justice Roberts wrote that such devices today contain digital records of "nearly every aspect of [one's] life," and therefore cannot be treated during a search as merely one in a number of items an arrestee might have in her pockets:
Before cell phones, a search of a person was limited by physical realities and generally constituted only a narrow intrusion on privacy. But cell phones can store millions of pages of text, thousands of pictures, or hundreds of videos. This has several interrelated privacy consequences. First, a cell phone collects in one place many distinct types of information that reveal much more in combination than any isolated record. Second, the phone’s capacity allows even just one type of information to convey far more than previously possible. Third, data on the phone can date back for years. In addition, an element of pervasiveness characterizes cell phones but not physical records. A decade ago officers might have occasionally stumbled across a highly personal item such as a diary, but today many of the more than 90% of American adults who own cell phones keep on their person a digital record of nearly every aspect of their lives.Writing for the court, Roberts notes that a cell phone reveals exactly the type of intimate information the NSA can cull from its digital surveillance, such as the exact, minute-by-minute movements of a person. This type of information, the court now holds, cannot be accessed without a warrant during a search by the authorities.
So, on the issue of a whether or not police rifling through an arrestee's cell phone constitutes a search, the court is now unambiguously clear: it is indeed, and one that requires a warrant. Why? Because one's digital life is protected by the Fourth Amendment.
However, what about the digital surveillance of U.S. citizens by the NSA? Does that constitute a search as well? This is the critical question. On this question, it is impossible to glean the court's answer in Riley v. California, though one line by Roberts suggests that the NSA should be worried.
See, the Obama administration holds that, with all of the privacy safeguards in place during metadata searches, NSA surveillance cannot possibly violate a citizen's Fourth Amendment rights, since such surveillance does not constitute an actual search. There are protocols in place which protect citizens' privacy, making NSA surveillance substantively different than a police officer looking at an arrestee's iPhone pictures.
However, as Tim Edgar in Lawfare writes, Roberts blows this "protocols" argument out of the water with one sentence:
The Chief Justice made short shrift of a similar argument in Riley, when the government said it would develop “protocols” to deal with the privacy problems its cell phone searches would create in an age of cloud computing. “Probably a good idea, but the Founders did not fight a revolution to gain the right to government agency protocols,” he said. As someone who wrote and reviewed many such guidelines for intelligence agencies, I couldn’t agree more! I expect to see this quote in brief after brief, whenever the government says internal safeguards are good enough.The Founders did not fight a revolution to gain the right to government agency protocols. This sentence should be enough to give those at the NSA pause, particularly, as Marcy Wheeler notes, since most of the NSA's justifications are based on its internal protocols.
There is undoubtedly some heartburn at the NSA on this point. Safeguards and oversight matter. The Supreme Court reminds us that they are no substitute for the Constitution.
For every single dragnet program the government conducts at NSA, it dismisses obvious Fourth Amendment concerns by pointing to minimization procedures.There is a long way to go legally for NSA surveillance to be ruled unconstitutional. However, at the very least, that legal groundwork has not been harmed by Riley v. California. At most? That groundwork has been squarely placed in the soil with an evocation of the Founding Fathers and a backhanded reference to "agency protocols" by the Supreme Court's Chief Justice.
Everything, everything, ev-er-y-thing the NSA does these days complies with the Fourth Amendment only under the theory that minimization procedures — “government agency protocols” — provide adequate protection under the Fourth Amendment.
David Harris-Gershon is author of the memoir What Do You Buy the Children of the Terrorist Who Tried to Kill Your Wife?, recently published by Oneworld Publications.