The Supreme Court's Wisdom on Metadata

The Supreme Court's recent decision requiring a warrant before police can search an individual's cell phone could boost current and future legal challenges to surveillance of Americans’ phone and Internet records.

June 28, 2014
Metadata cellphone

Crossposted from Al Jazeera.

On Wednesday, the Supreme Court issued a landmark ruling in Riley v. California that requires the police to get a warrant before they search through the contents of a suspect’s cell phone. This is a much-needed victory for digital privacy that is likely to have significant consequences beyond cell phone searches, boosting legal challenges to surveillance of Americans’ phone and Internet records.

In its decision, the Court emphasized that cell phones are not just another object that we tote around in our pockets and purses. Instead, they store vast quantities of personal information that, put together, reveal the “sum of an individual’s private life.”

But the justices did not stop there. They also delved into great detail about what sorts of information found on a cell phone they thought was private — namely, information about the phone’s location, Internet browser activity, and data stored remotely on cloud servers. This is a promising sign for other digital privacy cases looming on the horizon, including challenges to the National Security Agency’s surveillance programs and to intrusive police investigations.

The government routinely demands — without a warrant — records about when and where we used our cell phones and the numbers we dial from phone companies and Internet service providers. The Department of Justice has long argued that such ‘data about data’ is somehow less deserving of Fourth Amendment protection than the contents of our files and communications.

The Court’s concerns about cell phone location information are hard to square with this position. The justices were alarmed that a warrantless cell phone search would not only turn up our texts and e-mails, but also a detailed log of when and where we sent them — in other words, not just the information we store and access on our phones, but also the metadata that they generate as a result of our daily activities. Such information, the justices feared, could be used to “reconstruct someone’s specific movements down to the minute, not only around town by also within a particular building.” This echoes another unanimous 2012 decision from the Court banning long-term GPS surveillance of a suspect without a warrant.

The justices in Riley also objected to warrantless searches of our cloud data and Internet browsing histories. Internet companies routinely record the websites we visit on their servers. Cloud data is personal information stored on servers operated by companies like Google and Apple. Under the government’s theory, such information is not private because we reveal it to those companies. But the justices seem to disagree at heart.

To be clear, the Court did not rule on whether the government can force companies to hand over this data without a warrant. But they certainly seemed to think that it is fundamentally private. Our browsing histories can reveal our most intimate interests and concerns. And giving police access to cloud data through a cell phone, the justices found, is akin to allowing an officer who finds a key in a suspect’s pocket to also “unlock and search a house.”

This reasoning vindicates what many privacy advocates have argued all along — that privacy is about meaningful control over our information. We entrust our data, Internet activity, and cell phone location to private companies because it’s necessary to make the technology work, not because we choose to make it public. We do not need to lock ourselves in a room and draw the curtains to claim a right against “unreasonable searches and seizures.” Likewise, we should not have to transmit our thoughts and ideas in an electronic vacuum in order to protect our digital privacy.

If we take the Court’s opinion to its logical conclusion, the government will need to obtain a warrant before sweeping up our digital data unless they have a very compelling reason to bypass a judge. The justices took pains to point out that their decision is confined to the facts before them — whether the police should be able to search the cell phone of someone they arrest without a warrant. How they will strike the balance between privacy and national security in the realm of intelligence gathering remains to be seen. But the Court’s understanding of how technology has transformed virtually every aspect of our lives will at least put a thumb on the scale of digital privacy in future cases.

Photo by Brian Wilkins.