Justice Alito On Digital Vs. Hard Copy Data

In Riley v. California, SCOTUS held that police need a warrant before they can search through an arrestee’s cell phone. Justice Alito’s concurring opinion makes the same point that I made in a recent law review note: He argues that there should be no difference in how we treat data in hard copy and digital form. He writes:

The Court strikes this balance in favor of privacy interests with respect to all cell phones and all information found in them, and this approach leads to anomalies. For example, the Court's broad holding favors information in digital form over information in hard-copy form. Suppose that two suspects are arrested. Suspect number one has in his pocket a monthly bill for his land-line phone, and the bill lists an incriminating call to a long-distance number. He also has in his a wallet a few snapshots, and one of these is incriminating. Suspect number two has in his pocket a cell phone, the call log of which shows a call to the same incriminating number. In addition, a number of photos are stored in the memory of the cell phone, and one of these is incriminating. Under established law, the police may seize and examine the phone bill and the snapshots in the wallet without obtaining a warrant, but under the Court's holding today, the information stored in the cell phone is out.

Slip op. at 4-5 (Alito, J., concurring).

Justice Alito nevertheless concurs in part and in judgment because “[w]hile the Court's approach leads to anomalies, I do not see a workable alternative.” Id. at 5.

I made my argument in the context of electronic discovery in a note called Self-Storage Units and Cloud Computing, 102 Geo. L.J. 247-269 (2013). I criticized the federal Stored Communications Act because:

First, it draws a distinction--where none should exist--between e-discovery and traditional discovery. If a civil litigant sought to subpoena a third party for information contained in the “real world,” rather than in the digital sphere, the courts would allow it. Yet courts have applied the SCA to prohibit requesting parties from subpoenaing third parties, such as cloud computing providers, to acquire the same information that would be discoverable were the information stored in the real world. This is a problem.

Id. at 248.

I went on to say that

The only distinction between a real world storage unit and a server farm belonging to a cloud computing service provider is that the former's storage space is physical, rather than digital. But this is a distinction without a difference, because the content stored in those spaces--that is, the ideas conveyed by the hard copy or ESI materials--is the same. For instance, the meaning of a document does not change whether it is stored as a PDF on a server or printed in paper form. The content, or substance, of the document remains unchanged when it gets printed, and it is the content that matters

Id. at 254-55.

Obviously, I think this is an important point. As our world becomes increasingly digital, courts will need to navigate the implications of that development for existing legal doctrines. In the Fourth Amendment setting, courts can make that adjustment (as the Riley Court did) through Kerr's theory of "equilibrium adjustment." But for the Stored Communications Act and other pieces of legislation, Congress will have to take up that mantle.