A Failure of Protocol

By Timothy Edgar
Wednesday, June 25, 2014, 7:48 PM

The Supreme Court’s decision requiring a warrant for searches of cell phones incident to arrest affirms that we are entitled to privacy in the digital age.  These expectations, the Chief Justice explains, are entirely reasonable.  “Now it is the person who is not carrying a cellphone, with all that it contains, who is the exception.”  The Fourth Amendment is supposed to be the rule, not the exception, and it doesn’t require us to live our lives as technophobes. The message the Supreme Court wants to send in Riley v. California is unmistakably clear when it comes to digital privacy. “Get a warrant,” the opinion says---bluntly and unanimously.

The message may be clear, but the devil is in the details---or, in this case, in footnote one.  As that footnote makes clear, it is crucial that everyone agreed the search of a cell phone was exactly that---a search---and a search presumptively requires a warrant.  What about data surveillance?  Riley implies the Supreme Court is uncomfortable with it, but this question---if and when pervasive data monitoring might be a search for constitutional purposes – is as unsettled now as it was when Justice Sotomayor floated this particular trial balloon in her concurrence in United States v. Jones.

What about telephone metadata?  Smith v. Maryland says that isn’t a search.  What about transactional records held by third parties?  United States v. Miller says that isn’t a search either.  Not only have these cases not been overruled, they remain the foundation of much Fourth Amendment law.  How these cases apply in the digital age is still very uncertain, although Riley does at least make clear that the Supreme Court is unanimously of the opinion that digital is different.

And what about the NSA?  The most important question here is whether the government needs a warrant for surveillance of communications of foreigners overseas for intelligence purposes.  United States v. Verdugo-Urquidez says foreign persons on foreign soil lack Fourth Amendment rights, but the issue with the NSA’s activities has always been the Americans who may be in contact with foreign targets.  Are their rights are violated by foreign surveillance?  Are minimization procedures and other internal safeguards enough to protect their rights?  The Supreme Court hasn’t decided that one.  Clapper v. Amnesty International is still a big hurdle for anyone to get standing to squarely make that challenge, but cases in the lower courts challenging evidence derived from FISA Amendments Act surveillance may yet present the Supreme Court with a chance to consider the Fourth Amendment question.

After Riley, the intelligence community has some reason to be nervous.  In defending its activities, the Obama Administration has pointed---entirely appropriately---at privacy protections, including detailed targeting and minimization procedures, and substantial internal and external oversight.  Despite real challenges, these protections are meaningful and far exceed anything that other nations provide to protect privacy in their intelligence activities.

The Chief Justice made short shrift of a similar argument in Riley, when the government said it would develop “protocols” to deal with the privacy problems its cell phone searches would create in an age of cloud computing.  “Proba­bly a good idea, but the Founders did not fight a revolution to gain the right to government agency protocols,” he said.  As someone who wrote and reviewed many such guidelines for intelligence agencies, I couldn't agree more!  I expect to see this quote in brief after brief, whenever the government says internal safeguards are good enough.

There is undoubtedly some heartburn at the NSA on this point.  Safeguards and oversight matter.  The Supreme Court reminds us that they are no substitute for the Constitution.