Earlier this month, Iowa's Department of Transportation announced it was developing a digital drivers license. Hoping to render the plastic card version of a drivers license obsolete, state officials touted a 2016 implementation for the app.

Licensed drivers in Iowa would have a choice: a traditional card license, or the mobile app. The virtual license would contain the same personal information, including the mysterious bar code, as the plastic card version. During a traffic stop, a police officer would scan the bar code to verify the driver's information with the Department of Transportation.

This could be a problem given the amount of information contained on a typical cell phone. Privacy concerns arise for those Iowa motorists opting to use the digital license. For example, an officer might be privy to incoming text or email messages; an officer might glimpse a photo or the driver's call log, or other information to which the officer would not ordinarily have access.

Aside from the information stored on the driver's mobile device -a fully functional computer these days- questions also arise concerning what information the app retrieves, how such information is being secured or stored, and what information is being exchanged during the interface transaction.

Anticipating these basic privacy concerns, the Iowa DOT described a two-step authentication process, possibly including biometric user verification, and a security feature that would block a police officer from accessing any other part of the mobile device while the app was in use. For their part, law enforcement leaders in Iowa have reacted cautiously to the announcement, implying the digital license may cause more problems for police departments than it solves.

All of this brings to mind the recent SCOTUS decision in Riley v California, where the High Court ruled that in order for police to access the information on a motorists' cell phone, a warrant is required. The utility of this app depends on how it will be used by law enforcement and whether motorists are better served with one less plastic card to carry on one's person.

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By: Timothy P. Flynn

Fresh off the press from yesterday's announced decision: the 4th Amendment warrant requirement means something after all.  In Riley v California, a case we've been tracking here at the Law Blogger, SCOTUS held that without a warrant, the police cannot seize the digital data contained in an arrestee's cell phone.

California college student and convicted gang member, David Riley, had the misfortune of having a routine "tail light" stop turn into a 15-to life weapons-n-[attempted] murder-related sentence.  Now SCOTUS has reversed that sentence in a unanimous opinion that injects new life into the 4th Amendment's search and seizure clause.

The traffic stop led to the discovery that Riley's drivers license was suspended.  When law enforcement makes an arrest, the practice of conducting a search incident to that arrest is one of the exceptions to the 4th Amendment's warrant requirement.  Well, in Riley's case, that search led to the discovery of guns in the trunk.

The cops also located Riley's cell phone in the car from which they promptly extracted digital data in its entirety.  Think for a moment about the kind of data that lies buried within your cell phone.

In Riley's case, over his objection, the cell phone data suggested to the jury that Riley may have ran with a gang, and that he knew some things about the attempted gang hit for which he was being prosecuted.  

Legal scholar Lyle Denniston of SCOTUSblog summarized the High Court decision much better than we ever could:

Treating modern cellphones as gaping windows into nearly all aspects of the user’s life and private conduct, the Supreme Court on Wednesday unanimously ordered police to get a search warrant before examining the contents of any such device they take from a person they have arrested.  Seeing an individual with a cellphone  is such a common thing today, Chief Justice John G. Roberts, Jr., wrote, “the proverbial visitor from Mars might conclude they were an important feature of human anatomy.”

The Court rejected every argument made to it by prosecutors and police that officers should be free to inspect the contents of any cellphone taken from an arrestee.  It left open just one option for such searches without a court order:  if police are facing a dire emergency, such as trying to locate a missing child or heading off a terrorist plot.  But even then, it ruled, those “exigent” exceptions to the requirement for a search warrant would have to satisfy a judge after the fact.

The ruling was such a sweeping embrace of digital privacy that it even reached remotely stored private information that can be reached by a hand-held device — as in the modern-day data storage “cloud.”  And it implied that the tracking data that a cellphone may contain about the places that an individual visited also is entitled to the same shield of privacy.

We here at the Law Blogger heartily agree with this unanimous decision.  We walk around with our private lives attached, literally to our hip, or our ear, or our belt.  Cell phones are miniature personal computers, and should be imbued with some modicum of privacy relative to law enforcement.

If the data is needed to prove criminal conduct, then an old fashioned warrant must be secured.  From their landmark graves, our Founding Father's would agree.

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By: Timothy P. Flynn

California college student and convicted gang member, David Riley, had the misfortune of having a routine "tail light" stop turn into a 15-to life weapons-n-[attempted] murder-related sentence.  There were, of course, a few steps in between.

As SCOTUS editor Amy Howe puts it in plain English, the case is the Law & Order version of "If You Give A Mouse A Cookie".  The traffic stop led to the discovery that Riley's drivers license was suspended; bummer, arrested.

When law enforcement makes an arrest, the practice of conducting a search incident to that arrest is one of the exceptions to the 4th Amendment's warrant requirement.  Well, in Riley's case, that search led to..., you guessed it....weapons!  Guns in the trunk.

He says: target practice; they say: Gang-related, and attempted murder.  Oh yeah, the cops also located Riley's cell phone in the car.

The cops extract the data from Riley's cell phone which ultimately help them prove their capital charges.  At his trial, over his objection, the cell phone data suggested to the jury that Riley may have ran with a gang, and that he knew some things about the attempted gang hit for which he was being prosecuted.  

Then there's the sentencing hearing.  Huge sentencing problems in this case; enhancements are all over the place.  Essentially, the sentencing enhancements are a direct result of the weapons and attempted murder convictions which were largely based on Riley's cell phone data.

That's how Mr. Riley caught his case.  It does raise some interesting concerns for the rest of us; hence SCOTUS wisely granting certiorari.

Riley's direct state court appeal was rejected on the basis of a recent California Supreme Court decision holding that the scope of an officer's "search-incident-to-arrest" includes the arrestee's cell phone.  The next step for Riley was to petition the SCOTUS for a writ of certiorari.

We here at the Law Blogger are glad they took the case and will be waiting for this decision; hopefully to be issued as the Court wraps up its term.  The case was only argued in late April, so it's sure to be one of the final decisions released.  

Ms Howe summarized Riley's argument in a recent SCOTUSBlog post:

In his briefs at the Supreme Court, David Riley urges the Court to overturn the decision below.  He warns that a ruling in the state’s favor could sweep broadly, affecting the thousands of people who are arrested every day in the United States — often for offenses as trivial as jaywalking that don’t ever result in convictions.  Allowing police to search smart phones whenever they arrest someone would be a serious invasion of privacy, he says, because so many of us keep so much private information on them.  Indeed, Riley adds, this is exactly the kind of “general search” – looking through people’s homes and offices in the hope of finding evidence of a crime, even if the police didn’t have any real reason to believe that one had been committed – that the Framers of the Constitution were trying to prevent when they drafted the Fourth Amendment. 

Turning to more specific legal arguments against allowing cellphone searches without a warrant, Riley contends that, of the two rationales for allowing searches after someone is arrested, neither justifies the search in his case.  First, although police can search an arrestee for weapons that could be used to harm them, smart phones only contain things like texts, emails, photos, and videos, all of which “are categorically incapable” of being used as weapons.  Second, once police have the smart phone, there is no danger that the arrestee can destroy any evidence that it might contain:  during the time that it takes police to get a warrant, they can prevent someone else from accessing the phone remotely by putting it in a Faraday bag, which is designed to block cellular, WiFi, and other signals from reaching the phone.

If law enforcement can lawfully seize and forensically examine your cell phone pursuant to an arrest for something like, say, spitting on the sidewalk [or any valid arrest, however minor], then they can basically get the meta-data of your life which may or may not lead to counts being added to your felony charging instrument.

Well, it's Big Brother, for sure.  Amazing how vital a cell phone/computer has become to the average citizen.

Just remember, however, that your device can fall into the hands of the government at any moment in time. Nothing to hide, nothing to fear?  Let us see how the SCOTUS views it.

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