Cellphones, Privacy, Supreme Court, Technology, White-Collar Crime

Search Warrants To ISPs, The Supreme Court, And Electronic Privacy

It would be hard to overstate the importance of Riley v. California. Now data on cell phones (and, hopefully soon, other electronic media) requires a search warrant for law enforcement to get access to it during an arrest (generally — check your individual situation; exceptions may apply).

It’s so hard to overstate the importance of Riley that I don’t think a single media outlet has done it yet (which is really saying something in light of the current state of Supreme Court coverage).

As you may dimly remember from the criminal procedure class you took in law school, the “search incident to arrest” doctrine is a little screwy and subject to abuse. The general rule is that police can search things on your person or in the area of your arrest to make sure you don’t destroy evidence or hurt them, but nothing else. Later cases have held that the area you can reach while you’re being arrested (where you could destroy evidence or find something to hurt the police) includes the entire interior area of your car, regardless of how far you can reach or how wedged under the seat cushions that currency counterfeiting machine is.

This body of law is a lovely example of how pro-law enforcement results drive any reasonable understanding of how a test should be applied. Reading these cases in law school is a formatively disheartening experience (“really, that’s the kind of junk judges come up with? Why have laws at all?” etc.).

Riley, though, draws a line around your phone. Sure — the police can look into your pocket to see if that square box is a cell phone or a detonating device, and they can look in the back of your van to see if you could have reached a butterfly knife if you had a 20-foot arm span — but they can’t look inside the phone without first getting a warrant.

Of course, the Court could have decided this in a few ways. It could have written a very narrow doctrinal opinion. Or it could have issued a deeply divided set of opinions where there isn’t a clear statement about the development of the law as much as a resolution of one case. But, instead, the Court issued a 9-0 decision, authored by the Chief Justice, which was a celebration of the importance of electronic privacy and recognizes that we’re in a new world — and need new rules to handle it….

For example,

The United States asserts that a search of all data stored on a cell phone is “materially indistinguishable” from searches of . . . physical items. That is like saying a ride on horseback is materially indistinguishable from a flight to the moon. Both are ways of getting from point A to point B, but little else justifies lumping them together. 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. A conclusion that inspect­ing the contents of an arrestee’s pockets works no substantial additional intrusion on privacy beyond the arrest itself may make sense as applied to physical items, but any extension of that reasoning to digital data has to rest on its own bottom. (internal citation omitted)

Let’s hope someone at the NSA is secretly monitoring the Supreme Court’s opinions.

But I think there is an interesting consequence Riley may have for one interesting, and under-litigated, area of law.

Magistrate Judge Facciola on the District Court in the District of Columbia has been waging a one-judge war against the Department of Justice’s procedures for issuing search warrants to internet service providers.

Normally, if the feds want to get all of the emails associated with an email account, they’ll ask a judge for a warrant telling the internet service provider to give them all of the emails, then they’ll specify a search process for those emails.

Facciola has issued a series of opinions denying these search warrants because they’re general warrants (see, e.g., here). The colonists were offended by the King’s use of general warrants to search anything in a person’s house to find evidence of a crime (or disloyalty to the Crown). So the Fourth Amendment requires that a warrant can only issue if there’s probable cause to think that each thing being sought contains evidence of a crime. And each thing to be searched or seized has to be stated with particularity.

Because the government would seize more information than it has probable cause to think is evidence of the commission of a crime from these ISP warrants, Facciola held these warrants violate the Fourth Amendment.

It’s a cool argument. I recently litigated this issue in a fraud case (and lost), and found there are only three other district court opinions on this (if anyone else is litigating this issue, please email me — I’d love to talk about it). Perhaps the only small victory in my loss was that there wasn’t a written opinion on it, so I haven’t made bad law for anyone else.

As a result of the quantity of information law enforcement is getting from cloud service providers, the rules for how this information is obtained by law enforcement is going to matter a lot in how white-collar, and other, cases are investigated and litigated in the years to come.

There’s a line of cases in a similar vein — dealing with the search of hard drives found during a search warrant execution, and not a warrant to an ISP — that seem to run counter to Judge Facciola’s reasoning. Those cases expressly analogize electronic data to sets of documents. If the government has authorization to search for bank statements, it can take a box of files in your house to search back in the office to see if there are any bank statements in it — they shouldn’t have to cull through these documents on-site — these courts assert. Similarly, if the government finds a hard drive, it should be able to either seize it or mirror it and shouldn’t have to search it at the place the search warrant is executed.

Judge Facciola (and, I think, common sense) cleave a line between the hard-drive-in-the-drug-dealer’s-house case and an internet service provider where the search warrant is executed not by a team of agents but by a fax to a general counsel’s office.

But, aside from that, there’s a meaningful question about whether documents are the same as files stored on digital media for purposes of the Fourth Amendment.

In Riley, the Supreme Court moves away from the cases using documents to analogize to searches of digital media.

Although the data stored on a cell phone is distin­guished from physical records by quantity alone, certain types of data are also qualitatively different. 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.

So too with documents on computer hard drives.

As Judge Facciola has recognized, the rules for pre-electronic media can’t just be reflexively applied to this new world we’re in, even if courts compete with each other to bend to the “needs” of law enforcement. Happily, the Supreme Court yesterday is joining Judge Facciola in a serious effort to thoughtfully approach how the new world of law and electronic technology is developing.


Matt Kaiser is a partner at The Kaiser Law Firm PLLC, a boutique litigation firm in Washington DC, which handles government investigations, white-collar criminal cases, federal criminal appeals, and complex civil litigation. You can reach him by email at mattkaiser@thekaiserlawfirm, and you can follow him on Twitter: @mattkaiser.

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