Jun 252014
 June 25, 2014  Posted by  Court, Surveillance

Two more interesting analyses in the wake of today’s blockbuster SCOTUS ruling in Riley v. California:

Orin Kerr comments:

1) The Court’s opinion offers a major endorsement of treating computer searches differently than physical searches. Although the opinion is phrased primarily about “cell phones,” Chief Justice Roberts makes clear that “cell phones” are really just “minicomputers.” And if you take the reasoning of Riley to apply to other minicomputers and to electronic storage devices generally — which I think is the fairest reading of the opinion — then it means that lots of other applications of the Fourth Amendment to computers are now in play. As readers of the blog know, the lower courts are struggling to apply old principles of the Fourth Amendment to the new facts of computers. I think Riley can be fairly read as saying that computers are a game-changer: We’re now in a “digital age,” and quantity of data and the “qualitatively different” nature of at least some digital records changes how the Fourth Amendment should apply.

That’s a big deal. It means that Riley may just be the tip of the iceberg.

Read more on WaPo The Volokh Conspiracy.

And Daniel Solove comments on the implications of today’s opinion for “third party doctrine:”

Although the case involves searches incident to arrest and not other areas of the Fourth Amendment, the Court recognizes some key points about privacy and technology that might harbinger a change in some other Supreme Court doctrines. One of the worst doctrines in my view is the “third party doctrine,” which holds that if data is known to a third party, then there is no reasonable expectation of privacy in that data (and, as a result, no Fourth Amendment protection at all).


The Court’s reasoning in Riley suggests that perhaps the Court is finally recognizing that old physical considerations — location, size, etc. — are no longer as relevant in light of modern technology. What matters is the data involved and how much it reveals about a person’s private life. If this is the larger principle the Court is recognizing today, then it strongly undermines some of the reasoning behind the third party doctrine.

Read more on LinkedIn.

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