The significance of Riley

http://www.washingtonpost.com/news/volokh-conspiracy/wp/2014/06/25/the-significance-of-riley/

by wglb • 12 years ago

60 4 12 years ago

rayiner2• 12 years ago

Congrats to Prof. Kerr for getting cited twice (at least?) in this opinion.

If you read one Supreme Court opinion this year, read pages 15-25 of this one,[1] particularly the discussion of data accessible on cloud services on page 21. There is a lot in there that HN readers will nod along to, and I think should clearly dispel the notion that this Court doesn't understand the issues implicated by these sorts of cases. This is not an opinion that takes a narrow approach to 4th amendment interpretation.

There's a lot that can be quoted here, but I'll single out one: your documents in the cloud are your "papers and effects" for the purposes of the 4th amendment. Slip. Op. at 22. It will be really interesting to see how the Court reconciles this with the Third Party doctrine, when that issue comes up.

[1] http://www.supremecourt.gov/opinions/13pdf/13-132_8l9c.pdf

gohrt• 12 years ago

Too bad HN doesn't allow edits to old posts:

https://hn.algolia.com/?q=%22papers+and+effects%22+rayiner#!...

mrmaddog• 12 years ago

I fail to understand your insinuation here - in the future an articulated reply would be preferable. In each of the comments, I read rayiner's argument as "Your metadata isn't your data, and thus cannot be considered your papers and effects." My personal emails stored on GMail's servers seem to be squarely in domain of "papers and effects," according to the pages rayiner refers to, but does not offer any insight on whether the metadata (who I emailed) should be in this domain.

I believe rayiner refers to exactly this issue in the above comment when calling out the Third Party Doctrine.

rayiner2• 12 years ago

I'm curious which of my posts you're referring to. The ones you linked to discuss two things: 1) phone call metadata; 2) literal interpretation of the 4th amendment.

Riley doesn't overturn Smith v. Maryland, so I think collecting phone call metadata is still good legal. Riley does seem to cut back on third party doctrine, but probably not far enough to reach phone call metadata. There is a big difference between saying your photos in the cloud are your "papers and effects" and saying AT&T's call data records or Googles web server logs recording your activity are your papers and effects.

The second line of comments is aimed at people who say that the NSA ignores the "plain text" of the Constitution. I explain that the plain text is amenable to a narrower interpretation than the one the Court has taken, one based on property rights. One of the footnotes in a comment explicitly states I'm talking about a narrower interpretation than the Court's. The point is that the plain text doesn't obviously encompass the protections privacy advocates want.

Now, I wouldn't have said last week the Court would release such an expansively worded decision in Riley and state in dicta that documents in the cloud are protected, since that isn't even at issue in the case, but I don't think I'm in the minority there. This decision, if it continues to be developed in future cases, represents a new direction with regard to third party doctrine. The Court seems to have embraced wholesale the software abstraction: ignore the fact that behind the scenes data in the cloud is exposed to third parties, and pretend like it is a private extension of the phone's flash memory.

The significance of Riley

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