Habeas Data

by Cyrus Farivar

  “He’s a charming and likeable guy,” Ford told me. “He’s a person that came from a tough neighborhood, but he wasn’t a thug—there was a sense of mistrust and hopelessness in his eyes.”

  Ford came to understand that Riley grew up in rough circumstances and was trying to better himself, but struggled. When he was arrested, Riley had been enrolled as a community college student.

  “If he had been in a different circumstance he would have been living a different life,” Ford added.

  As the attorney and his client went forward, the searches of the cell phone weren’t where they were focusing their appeal. As is the case with many appeals, there are multiple avenues upon which to challenge the lower court’s ruling, often in order of importance, starting with the best argument. In Riley’s December 27, 2011, appeal to the Court of Appeal for the State of California, Fourth Appellate District, the cell phone search appeared second in a list of four lines of argument.

  Ford knew that the cell phone search incident to arrest question was probably something of a dead end given the Diaz case. But, like any thorough lawyer, he left it in.

  “I included his search issue in the event and it’s such an unbelievable long shot to have the Supreme Court take a case, but you include it on the odd chance that it might,” he said.

  The first challenge in the list of four arguments was the inventory search that eventually yielded the guns. Ford wrote that the San Diego Police Department’s policy at the time was in conflict with the Constitution—officers were conducting an improper search without a warrant. The second issue was the delayed search of the phone itself. Unlike in some other precedents, Riley’s phone was taken from inside the car, not from the pockets of his clothing.

  Even then, however, Ford’s argument was a little more circumspect.

  “Appellant does not seek to overturn Diaz, although that may well happen in the near future,” the lawyer wrote. “Instead, appellant argues that its ruling does not apply in the situation where the phone was not on the suspect’s person at the time of the arrest. Under the reasoning of Diaz, the search cannot be found to be valid as incident to arrest under the present circumstances.”

  * * *

  As 2012 continued, Ford moved ahead with the case, and the California Attorney General’s Office prepared its replies. By February 2013, the state appellate court made its ruling against Riley. Not only was the inventory search proper, but the entire issue of the cell phone search was dictated by Diaz. It appeared to be a dead end.

  Ford prepped his appeal to the California Supreme Court—like the highest court in the land, the San Francisco–based court only agrees to hear a tiny percentage of cases that are submitted. On May 1, 2013, the California Supreme Court denied the petition to review Riley. That left Ford and Riley nearly out of options, except for an appeal to the Supreme Court of the United States.

  The next day, May 2, 2013, on the other side of the country, in Tallahassee, Florida, the Florida Supreme Court reached the opposite conclusion than the California Supreme Court had arrived at in Diaz. There, the Florida high court was asked in Smallwood v. Florida to evaluate whether the Robinson precedent extended to a warrantless search of a cell phone. The court, in a 5–2 opinion, concluded that it did not. In short, phones were entirely different.

  “In our view, allowing law enforcement to search an arrestee’s cell phone without a warrant is akin to providing law enforcement with a key to access the home of the arrestee,” the majority ruled.

  Physically entering the arrestee’s home office without a search warrant to look in his file cabinets or desk, or remotely accessing his bank accounts and medical records without a search warrant through an electronic cell phone, is essentially the same for many people in today’s technologically advanced society. We refuse to authorize government intrusion into the most private and personal details of an arrestee’s life without a search warrant simply because the cellular phone device which stores that information is small enough to be carried on one’s person.

  Weeks later, back in California, Professor Jeffrey Fisher was tapping away at his computer at his ground-floor office at Stanford Law School, when he read Smallwood. Since 2006, Fisher has co-directed the Supreme Court Litigation Clinic, the first clinic in the country to focus solely on Supreme Court work.

  Law clinics are common at law schools around the country—they provide legal services, pro bono, for clients who cannot afford them as a way to conduct activism for causes that they believe in. It is also a crucial opportunity for lawyers-in-training to garner real-world experience, under the tutelage of experienced counsel. However, clinics that specialize exclusively on Supreme Court cases are relatively few and far between. Even more rare is a law school clinic with such a high-caliber attorney at its head.

  By May 2013, Fisher had argued and won at the Supreme Court 9 of 21 times. Fisher had extensive experience at the high court, beginning with his clerkship for Justice John Paul Stevens during the 1998–1999 term—a framed picture of Stevens remains on Fisher’s office wall. (According to a December 2014 report by Reuters, Fisher is one of the most frequent non-government attorneys to appear before the court.)

  As the head of Stanford’s clinic, he’s constantly looking for issues and cases that he could work on with his students. Back in 2011, when Diaz was first decided in the California Supreme Court, Fisher had worked on it as a moot court case for his law students to practice on, and he’d even reached out to the lawyer involved to possibly explore it as a case for the clinic. (Diaz’ attorney declined Fisher’s request.)

  Due to another case dropping off the clinic’s docket, Fisher and his assembled team of students were looking for one more case to round out their term. Knowing that the Florida Supreme Court had reached a different conclusion than the California Supreme Court, Fisher thought, perhaps the time was right to bring a challenge.

  So, he did what any good lawyer would do: he searched on Westlaw, a commercial legal database, for pending cases in California that applied the Diaz standard. Fisher found three such cases, including Riley. After discussing it with his students, they all agreed, Riley had the potential to be a great petition to the Supreme Court.

  Fisher called Ford out of the blue, introduced himself, and asked if they could work together on the cert petition to the Supreme Court. He explained the recent ruling from the Florida Supreme Court, and illustrated how this might make for a good candidate to be granted cert. Ford knew of Fisher’s work, but didn’t know him personally. It was a deus ex machina moment—unexpected, high-level help that appeared out of nowhere. In his 30 years as an attorney, Ford had only filed a handful of petitions to the Supreme Court, but none of them were ever successful.

  “Is this a trick question?” Ford thought to himself when Fisher asked him if he’d let him take the case. “Who would say no to that?”

  Ford not only had Fisher as an ally, he had a team of four crackerjack law students devoted to his client, effectively full time, for free.

  * * *

  The team got to work immediately on a cert petition. After Riley was incarcerated in Kern Valley State Prison, in Delano, California, about 240 miles southeast of Stanford, Fisher and his students drove down to meet him.

  “As a lawyer you’re representing a person who has a criminal conviction who is challenging his conviction and you have to bear that in mind from start to finish,” he said, saying that this was a rare opportunity for himself and his students to meet a client face-to-face. After all, Fisher and his students could drive to Delano and back to Stanford in a day.

  During the summer of 2013, Ford flew up to the Bay Area a few times to help in person, but otherwise contributed by phone and e-mail. While the team was preparing their cert petition, they became aware of a decision from the 1st US Circuit Court of Appeals in Boston—United States v. Wurie. In this case, like Smallwood in Florida, a federal appellate court found that a criminal suspect’s phone could not be searched without a warrant during an
arrest. For Fisher, this solidified his opinion that they had hit on the perfect moment after the issue had adequately percolated throughout the system of lower courts before the Supreme Court should adjudicate it.

  Cert was granted on January 14, 2014. The Supreme Court heard Riley and Wurie as essentially one case, and ruled accordingly. The stage was set for oral arguments on April 29, 2014.

  During the three months leading up to the big day, Fisher and his students conducted moot courts at Stanford Law, UCLA Law, and then Georgetown Law, with its famous detailed-oriented replica of the Supreme Court chambers. When in DC, Fisher spent a lot of time rereading notes and cases at the local offices of his old law firm, Davis Wright Tremaine. Finally, one or two days before the oral argument, Fisher took a three- to four-hour walk around the National Mall “to get my eyes off the written word.”

  Essentially, the crux of their argument was “digital is different”—data held on a phone is totally unlike any level of physical information that someone could conceivably keep on their person. An analogy that he and his students came up with was that saying “a phone is just another container…[is] like saying that a ride on a 747 is no different than a bicycle.”

  On April 29, Ford sat with Fisher at the counsel’s table. They had agreed that Fisher, as the Supreme Court veteran, would be arguing on behalf of Riley. Before they got down to the case at hand, Ford asked the court to admit his sister, also an attorney, to the bar of the Supreme Court. This was something of a formality and a small honor. Chief Justice Roberts granted Ford’s motion.

  As Ford re-took his seat, he looked at Fisher and grinned: “I just kicked ass, I don’t know how you’re going to do.” Fisher smiled back, and collected his thoughts before it was time to begin.

  In the two years since the 2012 Jones case of GPS tracking, the panel of nine justices remained the same.

  “Mr. Chief Justice, and may it please the Court,” Fisher intoned.

  This case involves applying the core protection of the Fourth Amendment to a new factual circumstance. It has always been the case that an occasion of an arrest did not give the police officers authority to search through the private papers and the drawers and bureaus and cabinets of somebody’s house, and that protection should not evaporate more than 200 years after the founding because we have the technological development of smartphones that have resulted in people carrying that information in their pockets.

  After some interplay with Justice Anthony Kennedy over the Robinson case, Justice Samuel Alito cut to the chase.

  “What is the difference between looking at hardcopy photos in a billfold and looking at photos that are saved in the memory of a cell phone?” he asked, seemingly leaning towards the government’s position.

  “The difference is digital information versus physical items,” Fisher responded. “Physical items at the scene can pose a safety threat and have destruction possibilities that aren’t present with digital evidence. What is more, once you get into the digital world, you have the framers’ concern of general warrants and the—the writs of assistance.”

  In other words, having a device that could contain vast quantities of data and wholly different types of information far beyond what people used to carry even as recently as decades ago—small slips of paper and photos—is an entirely different equation.

  Fisher was peppered with questions and presented with numerous hypotheticals. In the end, his position was clear: digital is different, so the police need to get a warrant.

  Arguing for the State of California was Edward DuMont, the state’s solicitor general—an unusual choice for Supreme Court cases. DuMont, who had been nominated by President Barack Obama in 2010 for a federal judgeship, was tasked with trying to convince the justices that the Robinson rule should indeed apply to cell phones.

  “Thank you, Mr. Chief Justice, and may it please the Court,” he said.

  “As Mr. Fisher has said, if Mr. Riley had been carrying physical photographs in his pocket at the time of his arrest, there’s no dispute that arresting officers could have looked at those photographs to see whether they contained evidence of crime. Now, what would have been reasonable in that situation does not become constitutionally unreasonable simply because Mr. Riley instead carried his photographs in digital form on a smartphone. The shifted digital format does not make the photographs any less his papers or effects—”

  That’s when Justice Sonya Sotomayor jumped in, pointing out that a lot had changed since the Robinson era.

  Counsel, in one of our Court decisions in the past, a series of justices asked—or noted that many of our rules were based on practical considerations. Practically speaking, a person can only carry so much on their person. That is different because carrying a billfold of photographs is a billfold of photographs. It’s, you know, anywhere from one to five generally and not much more. But now we’re talking about potentially thousands, because with digital cameras people take endless photos and it spans their entire life. You don’t see a difference between the two things? What has now become impractical. A GPS can follow people in a way that prior following by police officers in cars didn’t permit.

  Sotomayor, of course, was referring to the Jones decision from just two years earlier.

  Essentially, what DuMont argued, along the lines of what the government had said in earlier briefs, was that Riley actually didn’t have his entire life on his phone.

  “This cell phone had a handful of contacts,” he said. “I don’t think it’s in the record, but what we understand is there were 250 some-odd contacts, there were about 59 photos and there were perhaps 42 videos that ranged from 30 to 45 seconds.”

  In other words, perhaps there would be other situations that could have been more revelatory, but this wasn’t it.

  Michael Dreeben, the deputy solicitor general of the United States, gave a brief statement, and Fisher gave a brief rebuttal, and the case was submitted.

  Roughly two months later, the Supreme Court came back with a rare, 9–0 opinion in both Riley and Wurie. In the unanimous opinion Chief Justice John Roberts lambasted the government’s claim that searching a cell phone was “materially indistinguishable” from simply searching someone’s pockets.

  “That is like saying a ride on horseback is materially indistinguishable from a flight to the moon,” he famously wrote.

  Both are ways of getting from point A to point B, but little else justifies lumping them together. Modern cell phones, as a category, implicate privacy concerns far beyond those implicated by the search of a cigarette pack, a wallet, or a purse. A conclusion that inspecting the contents of an arrestee’s pockets works no substantial additional intrusion on privacy beyond the arrest itself may make sense as applied to physical items, but any extension of that reasoning to digital data has to rest on its own bottom.

  Roberts went further: “Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple—get a warrant.”

  At home in Palo Alto, Fisher had set his alarm for 7 AM PT, or 10 AM ET, when Supreme Court opinions are expected to be posted. When he read the opinion online, he was thrilled. Coming out of the argument, he’d thought he had the liberal wing, but wasn’t sure if he’d have five, much less nine votes. Even better, Justice Roberts had encapsulated the analogy that he and his students had thought of (“ride on a 747”).

  “It was somehow a true mind meld,” he recalled during a 2017 interview at his office, where his desk had neatly organized stacks of paper, and a red bicycle helmet perched near his window. “The court wrote back what you wanted to say, but even better.”

  * * *

  Riley was a huge decision. Like Jones, it wasn’t at all obvious that the court was going to rule this way. But as is the case so often, as the case worked its way through the courts, the technology raced ahead. By the time the Supreme Court ruled on Riley and Wurie, the phones in question were hopelessly out of date. Riley had an early model of smartphone,
which didn’t even run a modern operating system, while Brima Wurie had a flip phone. In neither case, as they made their way through the court system, was encryption an issue.

  In September 2013, Apple introduced Touch ID, a fingerprint scanner embedded into the home button of iPhones. The idea was that rather than have users memorize ever-longer and ever-more-complex passcodes, they could use something physical (a fingerprint) as a key to unlock the device.

  But while the Riley case implicated Fourth Amendment concerns, allowing a fingerprint to open an iPhone could potentially touch on Fifth Amendment issues. The crucial portion of the Fifth Amendment precludes testifying against oneself.

  By adding this technology, while undoubtedly intended to make digital security easier, Apple may have unintentionally created legal problems. As Marcia Hofmann—the San Francisco lawyer who was briefly Ladar Levison’s lawyer—noted in a 2013 Wired op-ed, that Fifth Amendment privilege only applies when there is a testimonial statement. Or, put another way, the Fifth Amendment protects what you know (a passcode, in your mind), but not what you are (a biometric fingerprint.)

  “We can’t invoke the privilege against self-incrimination to prevent the government from collecting biometrics like fingerprints, DNA samples, or voice exemplars,” Hofmann wrote. “Why? Because the courts have decided that this evidence doesn’t reveal anything you know. It’s not testimonial.”

  In the Riley decision, the Supreme Court quaintly noted that encryption was essentially not an issue. But just three months after the ruling, in September 2014, Apple released iOS 8 (as discussed in Chapter 2), which was reengineered to have full-disk encryption on by default.

  “On devices running iOS 8, your personal data such as photos, messages (including attachments), email, contacts, call history, iTunes content, notes, and reminders is placed under the protection of your passcode,” the company wrote on its website.