Riley v. California: Privacy Still Matters, but How Much and In what Contexts?

Abstract

Private information is no longer stored only in homes or other areas traditionally protected from warrantless intrusion. The private lives of many citizens are contained in a digital device no larger than the palm of their hand — and carried in public places. But that does not make the data within a cell phone any less private, just as the dialing of a phone number does not voluntarily waive an individual’s right to keep their call log or location private. We are not talking about individuals suspected of committing violent crimes. The Government is recording the calls and locations of citizens who have done nothing wrong, who are driving to work while talking to their spouses, or who are using their cell phones to call a loved one in the hospital. And the Government has the power to know where you are — and record the numbers you are calling. Unless it has a good reason for doing so — often referred to as probable cause or reasonable suspicion — this practice should have no place in a society that values civil liberties. Do the Government’s surveillance practices make us safer? Maybe. Should that matter? No. Assurances that we are ‘safer’ come at too high a price if the cost is to our personal freedom. That may make us safer, but it also makes every citizen less secure — and a little hesitant before dialing a number or downloading a YouTube video. If the Court were permit these and other warrantless intrusions into a person’s private life, the Fourth Amendment’s place on the constitutional hierarchy might be just a notch above the Third Amendment’s prohibition against the quartering of soldiers, or slightly below the often discussed but never-used Privileges and Immunities Clause. Simply put, Riley came at the right time, and hopefully is the beginning of enhanced protections for privacy rights.