July 2, 2014

In Riley, Supreme Court Sets Mobile Device Privacy Expectations

In a recent decision with significant implications for smart phone users’ privacy expectations, the Supreme Court, in Riley v. California, unanimously rejected the application of the “incident to arrest doctrine” to law enforcement searches of smart phones. This decision, a victory for privacy advocates, signals a growing awareness of the Court of the changing nature of technology and the need to reconcile these changes with users’ privacy expectations.

Signaling the importance of smart phones and users’ privacy expectations with these now nearly ubiquitous technologies, the U.S. Supreme Court issued a crucial privacy opinion in Riley v. California. The Court, in a unanimous decision, held that smart phones contain digital data that implicates significant individual privacy rights, and consequently law enforcement must obtain a search warrant before searching a person’s smart phone. The decision sets important precedent in the rapidly evolving worlds of technology and privacy. Importantly, Chief Justice Roberts acknowledged, that while the decision would make law enforcement’s job more difficult, “privacy comes at a cost” that still demands protection from government intrusion and the substantive and procedural protections warrants provide.


Riley and its companion case, U.S. v. Wurie, involved law enforcement’s search of suspected criminals’ cell phones after their arrest. One phone was a more basic flip phone, and the other a smart phone. The phones were searched pursuant to the “incident to arrest doctrine,” which permits law enforcement to search a defendant without a warrant upon the defendant's arrest. The primary rationales for this doctrine are reduced expectation of privacy for a person arrested, and concerns for officer safety and the destruction of evidence. This doctrine permits, for example, law enforcement to search people’s pockets and the inside of a crumpled cigarette package. At issue here was whether this doctrine and the rationales for it applied to cell phones.

The Supreme Court and Chief Justice Roberts answered this with a resounding no, finding that: “The term ‘cell phone’ is itself mislead­ing shorthand; many of these devices are in fact minicom­puters that also happen to have the capacity to be 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. Modern cellphones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans the privacies of life.”

Technology, Privacy and the Supreme Court

The decision sets important precedent in the rapidly evolving worlds of technology and privacy as the Court expressly rejected comparisons between traditional searches when compared to the breadth, capability and indispensability of smart phones to everyday life.

Significantly, the decision signals support for privacy rights arising out of digital interactions and procedural protections on government’s efforts to search and seek such information. Riley seemingly acknowledges the privacy considerations inherent in the use of many technology products including  GPS features, mobile apps and cloud computing. The decision also recognizes that the burgeoning use of mobile apps is now a way of life for many smart phone users.

In limiting government searches of mobile devices that are connected to the cloud, the Court observed that such a search through a smart phone user’s cloud data is like “finding a key in a suspect’s pocket and arguing that it allowed law enforcement to unlock and search a house.” The opinion comes on the heels of the 2012 opinion in U.S. v. Jones, where the Court found that planting a GPS device on a car while parked at the person’s house constituted the government’s illegal physical occupation of private property for the purpose of obtaining information. In Riley, when referring to the GPS capabilities on a smart phone, Chief Justice Roberts notes that this feature can “reconstruct someone’s specific movements down to the minute, not only around town but also within a particular building.”

*   *   *

Although the far-reaching implications of Riley are still yet to be seen, the Court’s recent technology related privacy cases suggest a growing awareness by the Court of the changing nature of technology and the need to reconcile these changes with users' privacy expectations. “That all nine justices agreed with the conclusion sends a clear message that maintaining privacy interests in cellphones is very important to this court,” Goodwin partner and former federal prosecutor Grant Fondo said. “The strength of the court’s message that data on cellphones is private will likely be a tool for privacy advocates” noted Fondo in an interview with Law360. Goodwin partners William Jay (a former Assistant to the U.S. Solicitor General) and Grant Fondo (a former Assistant U.S. Attorney) represented the Internet Archive and the American Library Association, whose position, outlined in a successful “friend of the court” brief, was in substance adopted by the Justices in Riley v. California.

About Goodwin’s Privacy and Cyber Security Practice

Goodwin’s Data, Privacy and Cybersecurity Practice leverages the firm’s core strengths, collaborating across the firm’s highly regarded technology, financial institutions, licensing, litigation and investigations, regulatory and appellate practices. This unique approach, focusing on client needs and value, enables us to engage specialists whose experience and leadership is framed by a holistic understanding of the nature and importance of information to modern enterprises.

For more information about this update, or for other assistance regarding privacy and data security matters, please contact Grant FondoWilliam Jay or any member of our privacy and cyber security team.