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Two Felons Could Force the Supreme Court to Protect Privacy in the Digital Age
Posted on Apr 29, 2014
By Bill Blum
The renowned whistle-blower Edward Snowden and journalists Laura Poitras, Glenn Greenwald and Barton Gellman called the world’s attention to telephone data searches and violations of informational privacy at the hands of today’s surveillance state, and now David Leon Riley and Brima Wurie may have the best chance to persuade the Supreme Court to articulate new privacy standards for the 21st century.
No, Riley and Wurie aren’t fearless public-interest lawyers looking to dismantle the National Security Agency. Nor are they people of great conscience like Snowden, or intrepid investigative reporters like Greenwald and company. They’re convicted criminals serving hard time in California and federal custody, respectively, who just happened to have their cellphones on hand when they were arrested, and their phone data examined afterward without warrants or probable cause.
Riley’s and Wurie’s cases were argued before Chief Justice John Roberts and his colleagues Tuesday in a pair of consolidated appeals that raise constitutional issues about the right to informational privacy under the Fourth Amendment similar to those implicated in the controversy surrounding the NSA’s warrantless collection of telephone metadata. And although the cases aren’t likely to force the very conservative Roberts court to overrule the pivotal 1979 decision—Smith v. Maryland—that has been cited repeatedly by the Obama administration as authority for the metadata program, they could compel the tribunal to question some of Smith’s underlying assumptions.
In the Smith case, the court considered the constitutionality of the government’s installation at a telecom switching station of a “pen register”—a mechanical device that reads the electrical impulses generated by dialing a phone to identify the numbers called by a robbery suspect. By a margin of 5-3, with the great progressive Justices Thurgood Marshall and William Brennan dissenting and Justice Lewis Powell not taking part, the court held that capturing the phone numbers—but not the content—of calls made by a criminal suspect was not a search within the meaning of the Fourth Amendment, much less a Fourth Amendment violation. Because telephone users voluntarily surrender such information whenever they place a call, the court explained, they have no reasonable expectation of privacy in their call logs.
Echoing Smith’s rationale, an opinion written in August by Foreign Intelligence Surveillance Court Judge Claire V. Eagan held that the difference in scale between the NSA’s bulk collection of telecom metadata and the numbers dialed from a single phone in Smith was constitutionally irrelevant. The metadata program was legal, and the fact that Smith stemmed from a pre-digital age left Eagan entirely untroubled.
Equally unfazed, the Supreme Court rejected a petition challenging the metadata program and the continued validity of Smith brought last term by the Washington, D.C.-based Electronic Privacy Information Center. Subsequent conflicting district court opinions—one by a federal judge in the District of Columbia holding that the program likely violates the Fourth Amendment and the other by a judge in New York concluding just the opposite—are under appeal and are not expected to reach the Supreme Court for at least another year.
Enter Riley and Wurie, with cases that at first blush seem worlds removed from Snowden, Greenwald and the NSA.
On Aug. 2, 2009, members of a San Diego street gang called the Lincoln Park Bloods, who were standing by a red Oldsmobile owned by Riley, opened fire on a vehicle operated by a member of the rival Crips. Three weeks later, a San Diego police officer on routine patrol stopped Riley for driving another car, a Lexus, with expired registration tags. After confirming that Riley had a suspended license, the officer decided to impound the Lexus and radioed for backup to conduct an inventory of the car. Soon after, two handguns were found under the vehicle’s hood, and Riley was hauled off to jail.
Along with the firearms, the police seized Riley’s Samsung smartphone. At the station, officers twice examined the contents of the phone without a warrant, discovering stored photos of Riley standing next to the red Oldsmobile and videos showing him flashing what the cops considered to be gang signs. Later still, the police obtained Riley’s cellphone call log, which showed that his Samsung had been used at the scene of the shooting.
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