Page 25 - FMJournal_2017_FINAL

electronic communication service or remote at 353. Justice Harlan’s two-fold question in his
computing service to disclose a record or concurrence became the lasting formulation of
other information pertaining to a subscriber what constitutes a “reasonable expectation of
to or customer of such service (not including privacy”: (1) whether the individual “exhibited
the contents of communications) only when an actual (subjective) expectation of privacy;
the governmental entity (A) obtains a warrant and (2) whether the individual’s subjective ex-
issued using the procedures described in the pectation of privacy is “one that society is pre-
Federal Rules of Criminal Procedure (or, in the pared to recognize as ‘reasonable.’” Id. at 361.
case of a State court, issued using State war-
rant procedures) by a court of competent juris- The Court’s most recent application of the
diction; [or] (B) obtains a court order for such reasonable expectation of privacy test to ad-
disclosure under subsection (d) of this section.” vances in technology was to the internal data
In turn, 18 U.S.C. Section 2703(d) provides: “A of “smartphones,” finding that an individual
court order for disclosure under subsection (b) has a reasonable expectation of privacy over
or (c) may be issued by any court that is a court their digital data. Riley v. California, 134 S. Ct.
of competent jurisdiction and shall issue only 2473 (2014). Integral to the Court’s determina-
if the governmental entity offers specific and tion that these privacy interests trumped law
articulable facts showing that there are reason- enforcement interests conducting searches
able grounds to believe that the contents of incident to arrest was its commentary on the
a wire or electronic communication, or the re- powerful and personal relationship between
cords or other information sought, are relevant cell phones and their owners: “Modern cell
and material to an ongoing criminal investiga- phones, as a category, implicate privacy con-
tion.” cerns far beyond those implicated by the
search of a cigarette pack, a wallet, or a purse.”
C. Relevant Cases on Reasonable Expectation Id. at 2488–89. It was this concern for the “pri-
of Privacy and Technology vacies of life” that led the Court to extend the
warrant requirement to searches of information
In Katz v. United States, the Supreme Court contained within individuals’ non-physical pos-
added to Fourth Amendment jurisprudence sessions.
by expanding on what constituted a “search”
or “seizure” prompting Fourth Amendment D. Relevant Cases on the Third Party Doctrine
reasonableness requirements that the govern-
ment must procure, in most cases, probable The Supreme Court has removed Fourth
cause and a warrant. 389 U.S. 347 (1967). Amendment protections from information that

Government agents had intercepted the con- is “voluntarily conveyed” by individuals to a
tents of a telephone conversation by attaching third party. In United States v. Miller, 425 U.S.
an electronic listening device to the outside 435 (1976), the Court applied the third-party
of a public phone booth. The Court rejected doctrine to the checks, deposit slips, and bank
the argument that a “search” can occur only account records of an individual who routinely
when there has been a “physical intrusion” kept those documents in the bank. The Court
into a “constitutionally protected area,” noting held that these documents were converted
that the Fourth Amendment “protects people, from an individual’s papers to the bank’s busi-
not places.” Id. at 351–53. Instead, the Court ness records: “The individual ‘takes the risk’
found that the government had conducted a that the bank will share those with the govern-
“search” because they had invaded the defen- ment down the road.” Id. at 443. Similarly,
dant’s “reasonable expectation of privacy.” Id. in Smith v. Maryland, 442 U.S. 735 (1979), the

FIRST MONDAY IN OCTOBER JOURNAL 17