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The US Supreme Court came out strongly in favor of personal privacy last month, unanimously declaring that law enforcement must first obtain a warrant before searching someone’s cell phone. But one of the lawyers who helped argue the case says many questions about you, your smartphone and privacy remain.
Key legal issues involving mobile devices have yet to be decided, such as how long law enforcement can store seized data and whether police are allowed to compel someone to provide the password of a locked mobile device.
“The court spent about 20 years wrestling with how the Constitution and search and seizure work in the context of an automobile. I think that’s basically what we’re going to see now,” says Bronson James, an attorney and former network engineer from Portland, Ore., who spent more than a decade arguing against warrantless searches of mobile devices in lower courts. “We’re going to see 10, maybe 20 years of litigation about computing, digital data, mobile computing, and how that interplays with the Fourth Amendment, the Fifth Amendment, and a number of issues.”
James was part of the team assembled by lead attorney Jeffrey Fisher to produce some briefs in Riley v. California, one of two cases decided by last month’s Supreme Court opinion. In the Riley case, a San Diego man was charged for having concealed weapons, but was then charged and convicted of attempted murder after police found photos and other records on his phone.
“All of these things flow out of Riley and it’s going to be a fascinating time,” James said. “There’s so much more to flesh this out in our court system that we’re going to be talking about this a lot.”
James spoke with CNET last week about the implications of the Supreme Court’s ruling and what it felt like to come out victorious after years of defeats.
Courtesy of Bronson James
Q: What’s your legal background relating to warrantless cell phone searches?
Bronson James: I’ve been doing that practically since becoming a lawyer. It dovetails nicely into the notion of privacy and security from a technology standpoint that I had been working on [as an engineer], and I began working on cases of fraud and identity theft and that led me into working with more cases about a range of electronic issues. The last 10 years have been transformative in criminal procedure practice throughout the country, as mobile computing has really blossomed. That has not gone unnoticed by law enforcement. Law enforcement now recognizes that the single highest-priority target when they apprehend somebody is whatever mobile computing device they have on them. It’s a treasure trove of information and it invariably gives law enforcement valuable information to assist in the prosecution. So as mobile computing evolved, my practice paralleled along with it and we began to increasingly see warrantless searches and seizures of devices and I began to increasingly fight them.
How far did you bring these cases prior to the Supreme Court decision?
James: I eventually managed to get the issue up to the Oregon Supreme Court back in 2010, in a case called State v. Nix, and there I raised at state court many of the same arguments that we put in the brief that we filed in the Riley case. But it just goes to show how times change. The law is a very slow moving ship and technology moves so much faster — society’s use of technology moves so much faster than the law is capable of responding — that timing is everything when you bring these cases. And at that point — even though it was only four years ago — it was just too early. I don’t think the court quite understood the nature of the devices and the nature of the arguments we wanted to make. They weren’t ready to rule there and they ruled against us, ultimately. But those arguments four years later carried the day at the US Supreme Court.
What arguments did you make in your cases?
James: When I first started litigating these cases many years ago, I was trying to equate cell phones to computers … and that was powerful, but it wasn’t quite enough, and that’s why over time my approach to these things changed. … A mobile phone isn’t just like a laptop. It’s somehow special. We have a very unique relationship with our mobile phones that we’ve never had to any other technological device. They have incredible privacy and an intimacy in how we use them and how they interact with our day-to-day living that really we haven’t seen prior to this. So, I went away from the notion of equating them to a laptop because I felt that that devalued the nature of the device itself. We put in our brief statistics that the court repeated in Riley about the number of people that sleep within an arm’s reach of their phone, the number of people that shower within an arm’s reach of their phone. That speaks to how we’ve integrated mobile computing in ways that are profoundly different and that gives rise to a privacy expectation that wasn’t present in earlier technologies.
Were you losing most of your cases early on?
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James: Absolutely. The thing that I love about the Riley opinion, it validates the notion of the legitimacy of our digital lives. In our brief we equated our mobile devices as the entryway into our virtual home. We said people live in two worlds now. We live in a physical world and we live also in a digital world. And that digital world has legitimacy. It’s not just a fringe thing … and is worthy of protection. Ten years ago we just weren’t ready for the court to accept that that whole area of social interaction had the aura of legitimacy that it has today. So yeah we were losing, we were losing consistently, and it’s a product of society changing and the law being willing to recognize that this isn’t fringe, this isn’t a fad, this isn’t some strange subgroup — we’re talking about everybody. That is, I find, a really positive step forward for the law.
What do you see as some implications of the case?
James: I certainly think that that court is going to be seeing a number of technology-related issues in the next few years, and there’s a lot of fallout from Riley. There’s a lot of questions unanswered. Riley’s the start of a conversation, it’s not the end. … So, we are at the beginning of that stage with Riley. What Riley does that is so excellent is that gives us a very firm foundation going forward. It recognizes the legitimacy of digital data, people’s use of it, their privacy — so we’re on strong footing going forward, but it’s still the start of that journey.
What was it like to win that Supreme Court case, particularly after so many prior losses?
James: It was an amazing, cathartic moment. It was a validation of nearly a decade’s worth of work and arguments. There are things that I put in the brief that trace back to the very first things that I was writing to courts 10 years ago, so it was very much a cathartic moment for me. I was extraordinarily happy with the result, very happy with the way the opinion was written. There was a brief moment where I sat back at my desk and I thought, “Wow, what am I going to do with myself now?” But, like I said, there’s a host of other questions … now there are these fresh issues that we can turn to.
