Sonia Sotomayor, John Roberts, and the Riley Decision

In a piece just published at Salon, I look at John Roberts’ citation in his Riley v. California decision of Sonia Sotomayor’s concurrence in US v. Jones, the opinion every privacy argument has invoked since she wrote it two years ago. I argue Roberts uses it to adopt her argument that digital searches are different.

A different part of Sotomayor’s concurrence, arguing that the existing precedent holding that you don’t have a privacy interest in data you’ve given to a third party “is ill suited to the digital age,” has been invoked repeatedly in privacy debates since she wrote it. That’s especially true since the beginning of Edward Snowden’s leaks. Lawsuits against the phone dragnet often cite that passage, arguing that the phone dragnet is precisely the kind of intrusion that far exceeds the intent of old precedent. And the courts have – with the exception of one decision finding the phone dragnet unconstitutional – ruled that until a majority on the Supreme Court endorses this notion, the old precedents hold.

Roberts cited from a different part of Sotomayor’s opinion, discussing how much GPS data on our movements reveals about our personal lives. That appears amid a discussion in which he cites things that make cellphones different: the multiple functions they serve, the different kinds of data we store in the same place, our Web search terms, location and apps that might betray political affiliation, health data or religion. That is, in an opinion joined by all his colleagues, the chief justice repeats Sotomayor’s argument that the sheer volume of this information makes it different.

Roberts’ argument here goes beyond both Antonin Scalia’s property-based opinion and Sam Alito’s persistence-based opinion in US v. Jones.

Which seems to fulfill what I predicted in my original analysis of US v. Jones — that the rest of the Court might come around to Sotomayor’s thinking in her concurrence (which, at the time, no one joined).

Sotomayor, IMO, is the only one ready to articulate where all this is heading. She makes it clear that she sides with those that see a problem with electronic surveillance too.

I would take these attributes of GPS monitoring into account when considering the existence of a reasonable societal expectation of privacy in the sum of one’s public movements. I would ask whether people reasonably expect that their movements will be recorded and aggregated in a manner that enables the Government to ascertain, more or less at will, their political and religious beliefs, sexual habits, and so on.


I would also consider the appropriateness of entrusting to the, in the absence of any oversight from a coordinate branch, a tool so amenable to misuse, especially in light of the Fourth Amendment’s goal to curb arbitrary exercises of police power to and prevent“a too permeating police surveillance,”

And in a footnote, makes a broader claim about the current expectation of privacy than Alito makes.

Owners of GPS-equipped cars and smartphones do not contemplate that these devices will be used to enable covert surveillance of their movements.

Ultimately, the other Justices have not tipped their hand where they’ll come down on more generalized issues of cell phone based surveillance. Sotomayor’s opinion actually doesn’t go much further than Scalia claims to when he says they can return to Katz on such issues–but obviously none of the other Republicans joined her opinion. And all those who joined Alito’s opinion seem to be hiding behind the squishy definitions that will allow them to flip flop when the Administration invokes national security.

Sotomayor’s importance to this decision likely goes beyond laying this groundwork two years ago.

There’s evidence that Sotomayor had a more immediate impact on this case. In a recent speech — as reported by Adam Serwer, who recalled this comment after yesterday’s opinion — Sotomayor suggested she had to walk her colleagues through specific aspects of the case they didn’t have the life experience to understand.

The Supreme Court has yet to issue opinions on many of its biggest cases this term, and Sotomayor offered few hints about how the high court might rule. She did use an example of a recent exchange from oral argument in a case involving whether or not police can search the cell phones of arrestees without a warrant to explain the importance of personal experience in shaping legal judgments.
“One of my colleagues asked, ‘who owns two cell phones, why would anybody?’ In a room full of government lawyers, each one of them has two cell phones,” Sotomayor said to knowing laughter from the audience. “My point is that issue was remedied very quickly okay, that misimpression was.”
The colleague was Chief Justice John Roberts, who along with Justice Antonin Scalia,seemed skeptical during oral arguments in Wurie v. United States that anyone but a drug dealer would need two cell phones.

“That’s why it’s important to have people with different life experiences,” Sotomayor said. ”Especially on a court like the Supreme Court, because we have to correct each other from misimpressions.”

In my Salon piece, I suggest that some years from today, some Court observer (I had Jeffrey Toobin in mind) will do a profile of how Sotomayor has slowly brought her colleagues around on what the Fourth Amendment needs to look like in the digital age.

I come away from this opinion with two strong hunches. First, that years from now, some esteemed court watcher will describe how Sonia Sotomayor has gradually been persuading her colleagues that they need to revisit privacy, because only she would have written this opinion two years ago.

Of course, it likely took Roberts writing the opinion to convince colleagues like Sam Alito. Roberts wrapped it up in nice originalist language, basically channeling James Madison with a smart phone. That’s something that surely required Roberts’ stature and conservatism to pull off.

But if this does serve as a renewed Fourth Amendment, with all the heft that invoking the Founders gives it, I’ll take it.

7 replies
  1. Betty says:

    I had assumed it was the Justices’ clerks who had explained smart phones to them – or perhaps their children. Glad to know that Justice Sotomayor is cluing them in to modern life. And, yes, it is heartening to hear the 4th Amendment may be getting a new lease on life.

  2. jo6pac says:

    Sotomayor suggested she had to walk her colleagues through specific aspects of the case they didn’t have the life experience to understand.

    Thank You SCJ Sotomayer because the above sentence cover 99% of the beltway.

    Thanks EW

  3. What Constitution? says:

    Properly read and reasonably interpreted by courts and by Congress, the decision in Riley v. California could and should become a watershed moment in Constitutional limitations upon the government’s activities in the area of privacy. EW is again to be commended for parsing the opinion to look for holes or “outs” — but the fundamental premises and articulations of the opinion solidly emphasize a judicial recognition that the Fourth Amendment is a meaningful part of the Constitution, which is not subject to nullification either because (1) it may be more convenient for the government to have access to the contents of communications technologies; (2) the government may be technologically capable of piercing communication technologies; (3) or because, once pierced, the government suggests it might be able to write a “protocol” to limit its use of materials thus obtained. The Fourth Amendment says “shall not”. There is a warrant requirement.

    The fact that the Court dropped a “footnote one” to point out that this decision does not decide more than the issues specifically before the Court is not an “out”, it’s what the “case or controversy” requirement of Article III posits as the proper judicial function. But that doesn’t mean the rationale of the decision should not or will not guide future analysis, including specifically analysis of the wooden extension of the limited “pen register” holding of Smith v. Maryland to anything and everything digital, meaning the type of things discussed by Justice Sotomayor in her concurrence in US v. Jones. And more to the point, the reasoning of unanimous Riley opinion plainly also calls into question the proposed structure of the “third party storage and searching” principles which the USA Freedumber Act contemplates (as recently flagged by Verizon’s associate general counsel and discussed by EW): “delegating” to the telecoms an obligation to collect more data than they have any business need for preserving plainly exceeds the nature of the privacy interests in digital information described in Riley, and Riley suggests that the government itself should not directly be mining such information and it could not possibly follow that the government can “delegate” such excessive collection/retention “requirements” to a private entity and then, to boot, “immunize” that entity for engaging in government-directed searches of such private information.

    My initial and rosy reaction to Riley is that we may be looking at the most potentially significant unanimous decision of the Supreme Court in a constitutional case since US v. Nixon. But only if it is taken to heart — and I have no doubt but that the Clappers, Alexanders, Feinsteins and Cheneys of the world will be all over efforts to tarnish the importance of the principles underlying that decision. I’d love to think that the world is moving past affording any weight to the views of Cheney, Clapper, Alexander and, for that matter, Feinstein where it is now plain — by unanimous pronouncement of the Supreme Court — that their presumption of governmental impunity and executive infallibility are out of step with the governing documents of this country. Yesterday was the first “pretty good day” in a while.

  4. grayslady says:

    Poor choice of words by the Slate author. Roberts wasn’t objecting to the “volume” of information, he was objecting to the “variety”. A little bit of this plus a little bit of that adds up to a compelling photo of anyone who stores personal information on a “smartphone”. This is the argument Greenwald has always made about metadata. Maybe Sotomayor reads The Guardian and The Intercept? One can always hope.

  5. Evangelista says:

    If one gives due and reasonable consideration to the prior precedents in regard to data entrusted to third parties, one, postal systems from the times postal system deliveries were implemented (as replacements for entrusting known friends with communications, incidental to their travels), and two, telephonic communications, from even before private-lines eliminated party-line party and human operator easy/temptation listening as phenomena (deplored and made illegal by ordinances), it is difficult to perceive any United States jurist condoning interception of any intended to be private communications. In both precedent situatuons data was entrusted to third parties for deliveries, with the differences being only in the media of the delivery: Postal communications are marking medium on surface and telephonic communications were analog form vibrations of electric currents in wires. Today telephonic communications are still vibrations of electrical currents, the vibrating being only digitally induced, and “electronic communications” (this differentiator is so-called) are the same, being only more rapid (higher frequency), and, returning to postal example, symbolic expression (like letters making words, words making sentences etc.). About the only way a jurist could rationally (but ridiculously) justificate assigning exemption from privacy precedents to digital-generator (computer) generated data would be through comparison to telegraphic communications, where Morse code was digital and required an end operator to decode, and so was inherently not private, or ‘private-able’. That quibble would be sophomorically bone-headed law-school student caliber.

    Hence, it appears to me that the Supreme Court Justices are not so much trying to draw the “law” of the United States back toward seeming more reasoning-ish based as trying to back themselves out of an idiot-caliber blind alley they bone-headedly walked themselves into in a desire to aggrandize themselves to law-makers. To jurists not dedicated to maintaining law and guarding law’s adhrence to foundational principles that give law systems that are credible their credibility (from which credibility derives authority) maintaining the law systems they have assumed responsibilities for the healths of, undoubtedly seems boring. To wield power making law, tacking on additions, filliping and twisitng seems more fun. Until the top-heavy with gew-gaws monstrosities they create with their addings on topples into unrest, chaos and usually war.

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