Justices' cellphone privacy ruling may have broad impact

WASHINGTON — When it comes to same-sex marriage, last year's Supreme Court ruling that the federal government must recognize legally married gay and lesbian couples has led to a string of lower court decisions striking down state marriage bans.

It's "the gift that keeps on giving," says Roberta Kaplan, the lawyer who won the case on behalf of New York widow Edie Windsor.

Now privacy rights advocates are hoping the high court's unanimous ruling last month on cellphone privacy will have the same broad impact on the clash between privacy and technology — perhaps even leading to decisions striking down the government's post-9/11 surveillance of Americans' telephone records.

The justices' 9-0 ruling that police need a warrant to search a cellphone — issued amid a flurry of late June decisions on religious liberty, abortion protests, presidential powers and other issues — was arguably the most significant of the 2013-14 term.

Unlike cases decided by narrow 5-4 margins or those in which justices differed over the reasoning, Chief Justice John Roberts' cellphone opinion was notable for "the emphatic, emphatic message from the court that digital is different," says Jeffrey Fisher, the Stanford University law professor who successfully argued one of the two cellphone cases, Riley v. California.

Now the question is: How different? Different enough to topple a 35-year-old court precedent that denied privacy protection to telephone records shared with third parties? Different enough to call into question the use of drones, surveillance cameras and other forms of high-tech snooping? Different enough to jeopardize national security operations?

Theodore Simon, incoming president of the National Association of Criminal Defense Lawyers, is devoting his first column in the group's monthly magazine to Riley's potential impact on past precedents and future issues. He foresees "a sea change in how one would look at future cases that in any way involve searches and seizures, and where there is the possibility of the revelation of significant personal data."

Roberts steered clear of any future shock in his opinion. Without naming the National Security Agency's telephone metadata program, currently the subject of three federal appeals court challenges, he said the cellphone cases "do not implicate the question whether the collection or inspection of aggregated digital information amounts to a search under other circumstances."

The Department of Justice seized on that single footnote in its subsequent brief to the U.S. Court of Appeals for the D.C. Circuit, which is considering federal District Judge Richard Leon's December ruling that the NSA surveillance program is unconstitutional. The high court's cellphone decision, it said, has "no bearing on this case."

That could turn out to be true. Two other federal courts have disagreed with Leon and declared the program legal. Unlike the cellphone case, which involved police pulling data from criminal suspects' phones, the NSA case involves just the collection of phone records — not listening to the actual calls.

"The NSA stuff was simply who called whom," says Nick Akerman, a data privacy expert at the law firm Dorsey & Whitney. "This is like apples and oranges. This is so different."

Others say the rhetoric of Roberts' opinion, rather than the ruling itself, implicates overzealous gathering of digital information in many forms. That could work against the government, which differentiates the NSA operation.

The government is "seeing the notes, but they're not hearing the music," says Fred Cate, director of the Center for Applied Cybersecurity Research at Indiana University School of Law. "National security has always been sort of a magic phrase in the courts. I think we're seeing less of that, though."

One immediate impact of the cellphone ruling could come in lower court cases involving the use of cellphone location records held by cellular service providers. Appeals courts are divided on whether the government needs a warrant to obtain that data.

The ruling also could affect cases involving the use of drones to collect large amounts of digital data. "Drones aren't like the ever-present policeman with binoculars in a helicopter," says Stephen Vladeck, a law professor at American University Washington College of Law and expert on the role of the federal courts in the war on terrorism.

The cellphone ruling is the most dramatic of the high court's recent opinions balancing privacy against technology:

• In Kyllo v. United States (2001), the court ruled 5-4 that police needed a search warrant to use a thermal imaging device that detected heat used to grow marijuana inside a home.

• In U.S. v. Jones (2012), it ruled unanimously that police could not attach a GPS device to a car without a warrant in order to monitor its movements.

• But in Maryland v. King (2013), the court ruled 5-4 that police could swab the cheek of someone arrested for a serious offense to obtain DNA — which then can be matched against databases of unsolved crimes.

In his cellphone privacy ruling, Roberts noted Justice Sonia Sotomayor's concurrence in Jones, in which she said that denying privacy protection to data because it's shared with cellular providers, Internet service providers and online retailers is "ill-suited to the digital age."

"Riley, I think, will again push the ball further in that direction," says Alan Butler, appellate advocacy counsel at the Electronic Privacy Information Center. The court's unanimity, he says, "sends a very strong signal about digital privacy rights."