In today’s Supreme Court decision Riley v. California, the court decided that police do not have the right to search a cell phone without a warrant incidental to an arrest. Tucked deep within the decision, the court gave the following reasons as to why a search of a cell phone is not the same as a search of the contents of an arrestee’s pockets:
The storage capacity of cell phones has several interrelated consequences for privacy. 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.
The reasoning here in the bold is exactly the same reasoning being used by opponents of various NSA programs to say that their collection of meta-data is a violation of the Fourth Amendment. It would seem therefore that Riley v. California could be used to say that these NSA programs are unconstitutional. Not so fast, however, as they added a footnote:
Because the United States and California agree that these cases involve searches incident to arrest, these cases do not implicate the question whether the collection or inspection of aggregated digital information amounts to a search under other circumstances.
Thus, for the moment the NSA would appear to be off the hook.