The Supreme Court’s ruling in the case of a San Diego gang member may be a shot in the arm for cases against the NSA’s bulk collection of phone metadata.
LOS ANGELES — Civil rights activists and others who have sued the U.S. government over the National Security Administration’s bulk collection of telephone metadata may now owe a debt to a member of San Diego’s notorious Lincoln Park gang.
Since the Guardian newspaper published whistleblower Edward Snowden’s revelations about the metadata program last June, about a dozen lawsuits have been filed alleging the NSA’s surveillance violated Fourth and First Amendment rights.
While most are in the early stages of litigation, some have already run into a landmark decision known as Smith v. Maryland, in which the U.S. Supreme Court held in 1979 that the warrantless installation of a primitive tracking device on a phone line by police investigating a criminal suspect was constitutional under the Fourth Amendment.
In December, a federal judge in New York cited the Smithcourt’s “bedrock holding” that “an individual has no legitimate expectation of privacy in information provided to third parties” in dismissing a case that the American Civil Liberties Union had brought against the government.
But because of the Supreme Court’s decision earlier this month in the case of Lincoln Park gang member David Riley, that bedrock may have begun to crumble.
Riley, 23, is serving 15 years in prison after being convicted of attempted murder and other charges related to a gang shooting. In what Marjorie Cohn, a professor at the Thomas Jefferson School of Law, called “one of the most significant Fourth Amendment rulings” it has ever handed down, the Supreme Court said that at the time of his arrest, police illegally searched the contents of his cellphone without a warrant to obtain evidence that was used against him at trial.
The contents of Riley’s Samsung “smartphone” included videos of street boxing fights involving both his co-defendants, in which he could be heard in the background shouting gang-related comments.
Writing for a unanimous court in Riley v. Californiaand a companion case called U.S. v. Wurie, Chief Justice John G. Roberts said cellphones were distinguishable from “traditional physical containers that might be seized incident to arrest” because “[w]ith all they contain and all they may reveal, they hold for many Americans ‘the privacies of life.’”
Equating them to items such as a cigarette pack, a wallet or a purse, Roberts wrote, was “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.”
The opinion did not address the Smithprecedent directly and cautioned in a footnote that “these cases do not implicate the question whether the collection or inspection of aggregated digital information amounts to a search under other circumstances.”
But Marc Rotenberg and Alan Butler of the Electronic Privacy Information Center, which filed an amicus brief supporting Riley, said in a blog post that the decision had “brought the Fourth Amendment into the digital age.”
“The Court’s conclusion that data is different will affect not only digital search cases, but also the NSA’s bulk record collection program, access to cloud-based data, and the third-party doctrine” that was upheld in Smith, they added.
Attorneys representing plaintiffs in cases against the NSA are gearing up to use the Riley and Wurie cases in their legal arguments.
“It’s obviously an incredibly important decision,” Alex Abdo, a staff attorney with the ACLU, told MintPress News in an interview. “It recognizes that privacy in the digital age requires different protections.”
The Rileycase originated from a routine traffic stop in San Diego on Aug. 22, 2009, when Officer Charles Dunnigan pulled Riley over for having expired tags. After finding out that Riley was driving with a suspended license, Dunnigan impounded the car, a Lexus, and conducted a search of its contents, which turned up two firearms.
Having placed Riley under arrest, Dunnigan then took Riley’s cellphone from him. During the first warrantless search of its contents, Dunnigan noticed the prefix “CK” had been used in text messages and the contacts list, which he interpreted as referring to “Crip Killers,” a slang term for members of the rival “Bloods” gang.
A detective later searched the phone at the police station, finding several photographs and videos that appeared to be gang-related. In one of the photos, Riley posed in front of a red Oldsmobile that police suspected had been used in an earlier drive-by shooting.
Prosecutors charged Riley and two others with shooting at an unoccupied vehicle, attempted murder and assault with a semiautomatic firearm, also alleging that they committed the crimes for the benefit of a criminal street gang.
After Riley’s first trial ended in a mistrial, a second jury convicted him in 2011 of all three charges. A key issue in his appeal was whether the “search incident to a lawful arrest” exception to the Fourth Amendment’s warrant requirement applied to the searches of his cellphones. Under the exception, which was defined by the U.S. Supreme Court in 1969, police can search physical objects within the “immediate control” of a suspect to protect themselves and prevent the destruction of evidence.
While Riley’s case was proceeding to trial, the California Supreme Court had ruled that a warrantless cellphone search was legal. “The relevant high court decisions do not support the view that whether police must get a warrant before searching an item they have properly seized from an arrestee’s person incident to a lawful custodial arrest depends on the item’s character, including its capacity for storing personal information,” the court said in the case known as People v. Diaz.
A California appeals court followed Diazand affirmed Riley’s convictions in February 2013.
In asking the U.S. Supreme Court to review Riley’s case, his lawyers noted: “The struggle to apply this court’s [Fourth Amendment] precedent to the unique technological capabilities of cell phones has divided federal courts of appeals and state courts of last resort.”
The Diazprecedent did not apply, they argued, because at the time the Supreme Court established the search incident to arrest exception, it “could not have envisioned a world in which the vast majority of arrestees would be carrying on their person an item containing not physical evidence but a vast store of intangible data — data that is not immediately destructible and poses no threat to the arresting officers.”
In the companion case, the Supreme Court agreed to review whether police properly searched the cellphone of Brima Wurie, a Massachusetts man who was convicted of dealing crack cocaine.
Chief Justice Roberts’s opinion emphatically discredits the notion that courts should not consider the “character” of cellphones in deciding whether a search is legal.
“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,” Roberts said. “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.”
A search of a cellphone, he suggested, might even be more intrusive than that of a house, since a phone “contains a broad array of private information never found in a home in any form — unless the phone is.”
Riley and Wurie may still face a tough fight reopening their cases because it is unclear whether the Supreme Court’s decision applies retroactively to convictions that are final. But civil rights lawyers say it has clear implications for the pending court challenges to the NSA’s bulk metadata collection program.
“It shows that the court … won’t unreasonably extend prior precedent … to new technologies that were not even remotely on the court’s radar in the 1970s,” Hanni Fakhoury, a staff attorney at the Electronic Frontier Foundation, told MintPress.
The ACLU’s Abdo said Riley and Wurie build on an earlier case in which the Supreme Court ruled that attaching a GPS tracking device to a car, then using it to monitor the vehicle’s movements, constitutes a search under the Fourth Amendment.
“It’s the second indication from the Supreme Court that Smith v. Maryland and the third-party doctrine do not apply to the kind of privacy protection we need in the digital age,” he said. “These are two tantalizing hints that when the court gets [an NSA] case, it will be very sensitive to privacy concerns when it comes to digital information.”
The U.S. government has previously argued that how courts rule on Fourth Amendment issues in criminal cases does not necessarily translate to national security cases. Abdo, however, notes that the Supreme Court has found in cases involving terror suspects detained at Guantánamo that “national security is not a blank check for the government to do whatever it wants.”
“If there is any limit [to the NSA”s surveillance] … the line has to be drawn at dragnet surveillance,” he said. “This is the bottom of the slippery slope.”