Trading Privacy for Angry Birds: a Call for Courts to Reevaluate Privacy Expectations in Modern Smartphones

• Publication year: 2015

SEATTLE UNIVERSITY LAW REVIEW Volume 38, No. 4, SUMMER 2015

Trading Privacy for Angry Birds: A Call for Courts to Reevaluate Privacy Expectations in Modern Smartphones

Jeremy Andrew Ciarabellini (fn*)

"That the individual shall have full protection in person and in property is a principle as old as the common law; but it has been found necessary from time to time to define anew the exact nature and extent of such protection. Political, social, and economic changes entail the recognition of new rights, and the common law, in its eternal youth, grows to meet the demands of society."(fn1)

"New technology may provide increased convenience or security at the expense of privacy, and many people may find the tradeoff worthwhile. And even if the public does not welcome the diminution of privacy that new technology entails, they may eventually reconcile themselves to this development as inevitable."(fn2)

"There is nothing concealed that will not be disclosed, or hidden that will not be made known. What you have said in the dark will be heard in the daylight, and what you have whispered in the ear in the inner rooms will be proclaimed from the roofs."(fn3)

I. INTRODUCTION

Of all the smartphone uses, the calling function is probably used the least. Rather, individuals more commonly use their smartphone for surfing the web, checking Facebook, and playing games. Highlighting the "smart" in smartphone, these phones often know more about their users' daily activities than the users. Without requiring any sort of input, smartphones can tell the user how many steps they walk each day, when it is time to leave for work (also, of course, determining the traveling time with the most up-to-date traffic reports), and when an item recently ordered on Amazon will be delivered. Smartphone users may instinctively know that they could dig into their phones' settings and turn off these features. They may also know that if their phones are telling them information about their daily activities, they are likely sharing that same information with third parties-targeted advertisements come to mind. Of course, all of the downloaded "apps" had some sort of agreement that the user probably did not read and just clicked "yes." The reality is that people enjoy the conveniences offered by smartphones and give little thought to any privacy implications. In practice, it seems smartphone users are willing to trade their privacy to play Angry Birds.

First introduced to the public in 1983,(fn4) cell phones have evolved to now allow average citizens to carry internet-connected computers in their pockets.(fn5) With such rapid technology advancement, it is unsurprising that the legal system has yet to establish a consistent privacy-based jurisprudence when it comes to smartphones and government searches.(fn6) Currently, courts are examining governmental searches of private smartphones under the Fourth Amendment.(fn7) However, the problem is that when the courts analyze the legality of a warrantless smartphone search by police, they summarily assume that the predicate "reasonable expectation of privacy" requirement exists for there to be a "search" within the meaning of the Fourth Amendment. Courts then move directly into analyzing whether the search was appropriate under an exception to the warrant requirement-this most commonly being the "search incident to arrest" exception.(fn8) Similarly, scholars are also guilty of making this assumption aboutprivacy expectations.(fn9)

It is the position of this Note that courts need to take a step back in their Fourth Amendment analysis and carefully evaluate whether individuals do in fact have the requisite privacy expectations. Specifically, this Note argues that with the advancement in smartphone technology and the ubiquity of privacy waivers in "apps," smartphone users too often share their personal information to third parties to reasonably claim any general expectation of privacy to the data in their smartphones. Individuals have traded the convenience of smartphones at the expense of their privacy.

In this Note, Part II examines the privacy protections of the Fourth Amendment and the history of the search incident to arrest exception to the warrant requirement. Part III surveys how various lower courts explore privacy rights in smartphones/cell phones and apply the search incident to arrest exception.(fn10) Part IV describes two fairly recent Supreme Court decisions that call for an examination of privacy expectations in smartphones and how the scholarly commentary on those decisions mistakenly maintains the primary focus on the search incident to arrest exception. Part V looks at the Supreme Court's most recent smartphone/cell phone search case and its failure to examine privacy expectations. Part VI presents data that modern smartphones users continue to download apps despite the ubiquity of privacy waivers. Part VII argues that an application of the third-party doctrine may vitiate any argument that an expectation of privacy in modern smartphones exists. Part VIII concludes.

II. THE FOURTH AMENDMENT AND THE SEARCH INCIDENT TO ARREST EXCEPTION

The Fourth Amendment states that it is "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures . . . ."(fn11) The framers' policy reasoning behind this Amendment was the desire to have magistrates, rather than law enforcement, determine the permissibility and limitations of searches and seizures.(fn12) This policy comes from the belief that magistrates, not law enforcement, are best able "[t]o provide the necessary security against unreasonable intrusions upon the private lives of individuals."(fn13) As such, "where there is a [reasonable] expectation of privacy, and no warrant is obtained, the search or seizure is generally illegal, and the evidence obtained thereby is generally excluded, unless an exception to the warrant requirement applies."(fn14) However, a warrant is not required where there is no search within the meaning of the Fourth Amendment-i.e., where there is no reasonable expectation of privacy in the object being searched.(fn15)

Therefore, as the threshold inquiry for determining whether an individual has a reasonable expectation of privacy in the object being searched, the court asks the following two questions: (1) does the individual subjected to the search exhibit an actual expectation of privacy, and (2) is that expectation one "that society is prepared to recognize as reasonable."(fn16) This test originates from Justice Harlan's concurrence in Katz v. United States and is commonly referred to as the Katz test.(fn17) This test "is not capable of precise definition or mechanical application."(fn18) In essence, the Fourth Amendment reasonableness analysis requires balancing the State's need to conduct searches and the individual's right to privacy.(fn19) Should the court recognize a privacy expectation, it then analyzes whether an exception to the warrant requirement exists.

Although the Supreme Court has held that warrantless searches (where a recognized privacy interest exists) are per se unreasonable,(fn20) the Court recognizes many exceptions.(fn21) One of these exceptions is the search incident to arrest.(fn22) The search incident to arrest exception to the warrant requirement permits government agents to search a person and his belongings upon a valid arrest to ensure officer safety and to preserve evidence.(fn23) This exception is the most commonly litigated issue of warrantless smartphone/cell phone searches.

Courts applying the search incident to arrest exception to warrantless smartphone/cell phone searches do not apply the exception uniformly.(fn24) While this section details the history of the search incident to arrest exception and how it came to be applied to cell phone searches, it is remarkable that courts largely overlook the threshold question-whether there is a reasonable expectation of cell phone privacy(fn25)-and jump almost directly into search incident to arrest analysis.

The Supreme Court's early jurisprudence on the search incident to arrest exception is unclear and primarily mentioned in dicta.(fn26) However, the Court explicitly established this exception in Chimel v. California in 1969.(fn27) In Chimel, officers arrived at the house of the defendant to serve an arrest warrant for a coin shop burglary.(fn28) When the officers handed the defendant the warrant, they asked for permission to "look around" the house.(fn29) Although the defendant objected, the officers conducted a search of the home, even though they had no warrant to do so.(fn30) For nearly an hour, the officers searched the entire house, directing the defendant's wife to open various drawers and move the contents around so they could thoroughly see what was inside.(fn31) The officers seized numerous items, including the stolen coins.(fn32) Over the defendant's objections that the items were unconstitutionally seized and admitted into evidence, the defendant was convicted of the burglary.(fn33) On appeal, the Supreme Court announced that[w]hen an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the [arrestee] might seek to use in order to resist arrest or effect his escape. . . . And the area into which an arrestee might reach in order to grab a weapon or evidentiary items must, of course,...