Recently, the United States Supreme Court decided the case of Riley v. California. It unanimously held that the police must have a search warrant in order to search the data contained on a suspect’s cell phone. The decision finally recognizes that cell phones are no longer just “phones.” Rather, cell phones are containers of personal data, records, communications, etc., in need of protection from intrusion by government agents. Privacy advocates are touting the decision as a major blow in favor of digital privacy.
After freedom loving Americans sadly discovered that essentially all of their digital communications have been recorded by the NSA, the decision seems to be welcome relief. In my opinion, the decision should have been a foregone conclusion. How can you compare a government agent rifling through a citizen’s most private information contained in a cell phone with searching under a car seat during a traffic stop. While I agree completely with the decision, I do not believe it will have a significant impact on protecting the privacy of Americans. I certainly do not believe that freedom advocates should be out slapping each other on their backs.
In the real world, the problem is that it is so easy for government agents to obtain a search warrant that the decision is essentially meaningless. In Hamilton County, Ohio, even prior to the Riley decision, the police typically obtained search warrants to search cell phones. I have handled cases where the search warrant affidavit essentially states that the police received information from an informant that John Doe committed the crime, but with no real connection claimed between the crime and the use of the cell phone. How is that sufficient probable cause to rummage through a citizen’s most personal information? Yet those warrants have been upheld by the reviewing Courts. If the police really want to search your phone it is so easy for them to get a search warrant, that the Riley decision is merely a hollow formality.
Unfortunately, that is a major problem with our legal system. We maintain the trappings and appearances of our hard fought freedoms, but they lack any real substance when applied to the real world. While touting the Constitution and waving our flags may make us feel good, they offer no real protection to the rights that should be held sacred to American citizens. Worse yet, they lull us into a false sense of security about the protection of our freedoms. Don’t let the Riley decision fool you into believing that your government is really concerned about protecting your privacy or that there is any meaningful layer of protection between the government and your personal information. As a fellow freedom loving American, please excuse me if I don’t jump for joy at this decision. In my opinion, it will just remain business as usual.
By Bryan Perkins, Attorney at Law, Cincinnati, Ohio
Read the Riley decision. supremecourt.gov/opinions/13pdf/13-132_8l9c.pdf