June 26, 2014

In this article, Jenner & Block Partner Anthony S. Barkow and Associate Eric Del Pozo analyze the Supreme Court’s recent decisions in Riley v. California and United States v. Wurie, which held that police may not, without a warrant, search digital information on a cell phone recovered from an individual who has been arrested.  The authors place these rulings in the context of “the Court’s evolving, if often implicit, take on the constitutional relevance of the amount and utility of information accessible in a search,” itself reflecting “a subtle shift in focus away from any provable injury inflicted on the individual to the scope, and potential for law enforcement misuse, of the personal data subject to acquisition.”  The authors note the Court’s concern, conveyed in Riley and Wurie, that by searching a modern smart phone’s contents, “police may (if so desired) reconstruct an individual’s entire private life, creating a sort of full-fledged avatar or iPerson.”  They conclude that, when read together with other opinions concerning GPS surveillance and DNA identification, the cell-phone search decisions “reveal the Justices’ discomfort with the large swaths of information available through just a little bit of technology.”