BLOG BULLETS:

• In Riley v. California, the Supreme Court held that cell phones couldn’t be searched as part of a search incident to arrest.
• The Court emphasized the far greater amount of information on a cell phone and the resulting far greater intrusion on privacy when a cell phone is searched.
• This reasoning suggests either reconsideration or at least strict limitation of the Ninth Circuit’s holding allowing suspicionless non-forensic border searches of laptop computers in United States v. Cotterman and United States v. Arnold.

NOW THE BLOG:

Everyone hopefully knows about the Supreme Court decision inRiley v. California, 134 S. Ct. 2473 (2014) last June holding that officers can’t search a cell phone as part of a search incident to arrest. What I’ve been thinking about in addition to that basic holding – and would encourage others to think about – is the effect it might have on the Ninth Circuit’s holding in United States v. Cotterman, 709 F.3d 952 (9th Cir. 2013) (en banc), which I blogged about in a couple of posts a year or two ago. (See “Getting Even Braver in a Brave New World: Computer Searches Part 3” in the August 2012 link at the right and “Back to the Brave New World of Computer Searches: A Good (or at Least Improved) New Ninth Circuit Decision” in the March 2013 link at the right.)

You’ll recall that Cotterman was a mixed bag. On the good side, it reversed a panel decision allowing intensive forensic computer searches at the border with no suspicion at all and held that reasonable suspicion was required for a forensic computer search at the border. See id. at 962. On the bad side, reasonable suspicion is all it required, so the ordinary Fourth Amendment warrant and probable cause requirements don’t apply. It also held that at least some non-forensic searches could be conducted without any suspicion at all, noting that “we have approved a quick look and unintrusive search of laptops.” Id. at 960. It then cited as an example a search in United States v. Arnold, 533 F.3d 1003 (9th Cir. 2008), where officers “simply ‘had [traveler] boot [the laptop] up, and looked at what [he] had inside.’” Cotterman, 709 F.3d at 960 (quoting Arnold, 533 F.3d at 1009). See also Cotterman, 709 F.3d at 957-58, 961 (describing first officer at border as having “inspected the electronic devices and found what appeared to be family and other personal photos, along with several password-protected files,” and opining that “[h]ad the search of Cotterman’s laptop ended with [this officer], we would be inclined to conclude it was reasonable even without particularized suspicion”).

This latter holding in Cotterman seems particularly open to question – or at least severe limitation – after Riley. The searches which were challenged in Riley and its companion case – United States v. Wurie – were non-forensic searches of cell phones which revealed a few text messages, some photographs, and a call log. See Riley, 134 S. Ct. at 2480-81. That did not prevent the Supreme Court from distinguishing cell phone searches from the searches of the person and objects found on the person which the Court approved in earlier search incident to arrest cases, however. As the Court put it in rejecting the government’s argument that the search of a cell phone was “materially indistinguishable” from searches of other physical items:

That is 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. 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.

Id. at 2488-89.

And this was not all the Court had to say about the greater privacy interests implicated by cell phone searches. It noted that “[c]ell phones differ in both a quantitative and qualitative sense from other objects that might be kept on an arrestee’s person,” that “many of these devices are in fact minicomputers that also happen to have the capacity to be used as a telephone,” and that “[t]hey could just as easily be called cameras, video players, rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps, or newspapers.” Id. at 2489. It then noted cell phones’ “immense storage capacity” and that that “has several interrelated consequences for privacy.” Id. at 2489.

First, a cell phone collects in one place many distinct types of information – an address, a note, a prescription, a bank statement, a video – that reveal much more in combination than any isolated record. Second, a cell phone’s capacity allows even just one type of information to convey far more than previously possible. The sum of an individual’s private life can be reconstructed through a thousand photographs labeled with dates, locations, and descriptions; the same cannot be said of a photograph or two of loved ones tucked into a wallet. Third, the data on a phone can date back to the purchase of the phone, or even earlier. A person might carry in his pocket a slip of paper reminding him to call Mr. Jones; he would not carry a record of all his communications with Mr. Jones for the past several months, as would routinely be kept on a phone. (Footnote omitted.)

Id. at 2489. “Finally,” the Court pointed out, “there is an element of pervasiveness that characterizes cell phones.” Id. at 2490. It noted that “[p]rior to the digital age, people did not typically carry a cache of sensitive personal information with them as they went about their day,” but that “[t]oday, by contrast, it is no exaggeration to say that many of the more than 90% of American adults who own a cell phone keep on their person a digital record of nearly every aspect of their lives – from the mundane to the intimate.” Id. The Court then noted that “certain types of data [stored on cell phones] are also qualitatively different” and pointed to browsing history that “could reveal an individual’s private interests or concerns,” data on a cell phone that could reveal where a person has been, and cell phone “apps” that “together can form a revealing montage of the user’s life.” Id.

These descriptions of the information which can be revealed by non-forensic searches of cell phones mirror what the Ninth Circuit said about forensic searches in Cotterman. The Ninth Circuit spoke of the “warehouses full of information” that electronic devices store, Cotterman, 709 F.3d at 964; compare Riley, 134 S. Ct. at 2489 (noting “immense storage capacity” of cell phones), “the most intimate details of our lives” that electronic devices contain, Cotterman, 709 F.3d at 964; compare Riley, 134 S. Ct. at 2490 (describing cell phone as containing “a digital record of nearly every aspect of their lives – from the mundane to the intimate”), and things like “financial records, confidential business documents, medical records and private emails” that electronic devices contain, Cotterman, 709 F.3d at 964; compare Riley, 134 S. Ct. at 2489 (noting that cell phone “collects in one place many distinct types of information – an address, a note, a prescription, a bank statement, a video”). The Ninth Circuit also spoke of “cloud computing” as the Supreme Court had. See Cotterman, 709 F.3d at 964; compare Riley, 134 S. Ct. at 2491. It was these “substantial personal privacy interests,” Cotterman, 709 F.3d at 964, that triggered a reasonable suspicion requirement for forensic computer searches.

The similarity in Riley’s description of the intrusiveness of non-forensic computer searches and Cotterman’s description of the intrusiveness of forensic computer searches tells us the reasonable suspicion requirement in Cotterman should extend to even non-forensic searches. Certainly, it should extend to non-forensic searches beyond the “quick look[s] and unintrusive search[es]” approved in Cotterman and Arnold. And arguably even those “quick look[s] and unintrusive search[es]” can no longer be conducted without reasonable suspicion. For a Ninth Circuit panel considering that question, this would require a conclusion that this aspect of Cotterman and Arnold is “clearly irreconcilable” with Riley. See Miller v. Gammie, 335 F.3d 889, 900 (2003) (en banc) (holding panel not bound by prior circuit precedent that is “clearly irreconcilable” with intervening Supreme Court decision). But “clearly irreconcilable” may be a fair characterization here. And a panel could certainly strictly limit Cotterman’s and Arnold’s approval of suspicionless non-forensic searches to the brief searches actually described in those opinions and hold Cotterman does not allow more detailed reviews of hundreds of computer files and folders. A panel could also suggest en banc reconsideration of Cotterman and Arnold in light of Riley. And we can be arguing for en banc and/or Supreme Court review even if the panel doesn’t suggest it.

So think real hard about Riley’s effect on non-forensic computer searches at the border. It may have significantly limitedCotterman, if not flatly overruled it.