pillsburylaw.com
On June 25, 2014, the U.S. Supreme
Court issued one groundbreaking
opinion in two cases regarding
cellphone searches incident to
arrest. In a unanimous opinion, the
court held that under the Fourth
Amendment, police must obtain
a warrant prior to searching the
cellphone of an arrestee. The court
found that the “immense storage
capacity” of cellphones and their
aggregation of data dierentiated
them from other items found on an
arrestee’s person. Chief Justice John
G. Roberts Jr. wrote that cellphones
“could just as easily be called
cameras, video players, rolodexes,
calendars, tape recorders, libraries,
diaries, albums, televisions, maps, or
newspapers.”1
This commentary situates the
Riley decision in the broader
context of technology search
cases and analyzes its potential
implications for companies faced
with a government request to turn
over customer data. The Supreme
Court’s acknowledgments of the
altered technological landscape and
the sensitivity of user data signal
a potential shift in its third-party
guidance, and its decision is a hopeful
sign for companies seeking to protect
user privacy in the face of digital data
requests from the government.
The Third-party Doctrine:
An Overview
The third-party doctrine states
that an individual does not have a
reasonable expectation of privacy
in any communication that is
“voluntarily conveyed” to another.
Whether this concerns a conversation
with an informant, or transmissions
to banks and telecommunications
companies, the Supreme Court has
generally held that if the information
is made available to a third party, the
government may access it without a
warrant.2
In 1928 the high court held that
warrantless wiretapping of telephone
lines did not violate the Fourth
Amendment, provided there was no
physical trespass on an individual’s
land. In dissent, Justice Louis
D. Brandeis argued that the U.S.
Constitution must be adapted to a
changing world. He noted that “[s]
ubtler and more far-reaching means
of invading privacy have become
available to the government.”3
Almost 40 years later, the court
overturned that decision, holding
that the warrantless wiretapping of
a public telephone booth violated
a defendant’s constitutional rights
because the Fourth Amendment
“protects people, not places.”4 As
Marley Degner
Litigation
415.983.1186
marley.degner@pillsburylaw.com
Marley Degnar is a counsel in Pillsbury’s
Litigation practice in the San Francisco office.
Pillsbury Winthrop Shaw Pittman LLP
Litigation
Riley and the
third-party doctrine
This article was originally published in Westlaw Journal on April 9, 2015.
by Marley Degner
