Unpacking digital containers: extending Riley's reasoning to digital files and subfolders.

• Author: Mestitz, Michael
• Position: Author abstract

Table of Contents Introduction I. Unpacking the Container Doctrine A. Containers and the Fourth Amendment B. The Old Divide: The Virtual File Approach and the Physical Device Approach 1. The physical device approach: each device is a container 2. The virtual file approach: each file is a container C. Riley and Wurie. The Opinion and Underlying Searches II. Applying Riley. The Virtual File Approach Must Win Out A. The Virtual File Approach Follows Naturally from Riley 1. Riley's quantitative considerations apply to digital subcontainers 2. Riley's qualitative considerations apply to digital subcontainers B. The Virtual File Approach Has a Sound Basis in History 1. Warrant preference 2. New Fourth Amendment originalism III. Applying the Container Doctrine to Individual Files A. Containers that Disclose Their Contents: The Plain View Exception B. Containers that Manifest a Particular Privacy Interest: Passwords and Encryption C. The Rule in Action: A Hypothetical Consent Search Conclusion Introduction

In June 2014, the Supreme Court unanimously held in Riley v. California that cellular phones are protected against warrantless searches incident to arrest. (1) The Court concluded cell phones differ "in both a quantitative and a qualitative sense" from other objects an arrestee might carry, rejecting the argument that phones are like other containers for the purpose of the Fourth Amendment. (2) The decision was hailed in headlines as "the dawn of a new digital age of privacy." (3) It is undoubtedly a significant case with broad implications.

The next great issue of digital privacy will be determining which legal rules and privacy interests separate one file from another file when the government is already conducting a search. Like a Russian nesting doll, a cell phone is not just one undifferentiated container: it contains separate folders and files--"subcontainers" (4) --all nested within each other. And although Riley spoke explicitly only to the broadest level of container, this Note argues that Riley's reasoning applies equally to warrantless searches of the separate files and folders within those digital devices. Although the Court has not historically been concerned with the privacy interests in particular subcontainers, Riley s approach in recognizing the special status of digital containers suggests this view is ripe for reexamination. To that end, it makes the most sense after Riley to treat each individual file or folder as an individual subcontainer--that is, as protected by a particular privacy interest unaffected by a search of the surrounding files, and requiring particular authorization to search in the form of either a warrant or a valid exception to the warrant requirement.

This interpretation is buttressed by the policy and history behind the Fourth Amendment. Traditionally, objects subject to search have been conceived of as "containers": a cigarette package in a pocket, (5) a backpack over the shoulder, or a lockbox in the trunk of a car. (6) Digital searches now force courts to determine whether telephones, computers, and individual digital files are "containers" for the purpose of determining the permissible scope of warrantless searches, and how conventional physical search rules apply to digital searches. As the Court has previously observed, "[i]t would be foolish to contend that the degree of privacy secured to citizens by the Fourth Amendment has been entirely unaffected by the advance of technology." (7) Riley in particular represents the Court's unanimous acknowledgement that digital containers are, at least in some respects, different in kind from their physical counterparts.

It is easy to see why this issue will matter. When criminal suspects are subject to warrantless searches, questions naturally arise about the permissible scope of the search. And where containers are involved, those questions often turn on whether the defendant maintains a reasonable expectation of privacy in a given container. For investigators conducting the search, it means understanding the circumstances under which they may proceed and when they must stop. For some defendants, it can mean the difference between the admission and suppression of damning evidence. For all, it implicates profound intrusions on one's privacy.

Although lower courts are just beginning to feel Riley's effects, Riley's reasoning can resolve a longstanding split between courts on how to treat the files within computers and other digital devices. The Fifth and Seventh Circuits have held that warrantless searches of part of a computer allow searches of all of a computer, including unrelated files and subfolders. (8) The Sixth and Tenth Circuits, on the other hand, have subscribed to the theory that each folder on a partially searched computer is an individual container that carries with it a distinct expectation of privacy requiring either a warrant or an independent justification for a warrantless search. (9) Riley compels the conclusion that the latter approach is correct: just like cell phones themselves, the individual files in a computer or a cell phone can contain vast amounts of private information. To subject them to indiscriminate warrantless searches strikes at the very heart of Fourth Amendment protections. (10)

This Note proceeds in three Parts. Part I provides a brief overview of Fourth Amendment precedent on containers, describes the current divide among circuits, and outlines the Court's decision in Riley. Part II explains why Riley and the Fourth Amendment militate that the current circuit conflict be resolved in favor of more, not less, privacy protection of unopened computer files. It therefore proposes that each digital subcontainer should be considered protected by the Fourth Amendment. Finally, Part III examines two special doctrines for containers that lend further support to this Note's suggestion that conceptualizing individual files as containers provides a consistent and administrable rule to govern digital searches. (11) The Part concludes with a brief explanation of how this rule would look in practice when applied to a consent search, one of the most common forms of warrantless search conducted today.

1. Unpacking the Container Doctrine

   The important question of containers--what counts as a container and therefore receives Fourth Amendment protection--arises throughout Fourth Amendment jurisprudence. This Part presents some doctrinal background on the container doctrine and the existing circuit split. Subpart A provides a brief historical overview of the relevant law. Subpart B delves deeper into how courts applied this law before Riley and how courts have approached so-called "subcontainers": containers that are themselves contained within larger packages. It explains the two views in the circuit split, the "virtual file" approach and the "physical device" approach. Subpart C describes the Court's decision in Riley and sets the stage for the discussion of its application to digital subcontainers.

   1. Containers and the Fourth Amendment

      What constitutes a "container" for the purposes of the Fourth Amendment? The Supreme Court has defined a container as "any object capable of holding another object." (12) This simple definition alone tells us little beyond emphasizing how important it is to determine what constitutes a "container" and suggesting how vast and malleable that category might be.

      The container doctrine itself, which recognizes a privacy interest in closed containers, owes its start to the bustling postal roads of the late nineteenth century. In Ex parte Jackson, the Court extended Fourth Amendment protections to sealed packages in the mail after Congress passed a law excluding certain items from postal delivery. (13) Enforcement of the new law would have permitted authorities to inspect closed envelopes and parcels. (14) Rejecting the notion that Congress had the power to authorize warrantless searches of those containers, Justice Field wrote that the packages were "as fully guarded from examination and inspection" as if they were still within the sender's home, and therefore any search of them must be "in subordination to the great principle embodied in the fourth amendment of the Constitution." (15)

      The Court was not writing on a blank slate. The Fourth Amendment was a response to the British practice of issuing general warrants and writs of assistance, which empowered English authorities to "rummage through homes in an unrestrained search for evidence of criminal activity." (16) These writs of assistance--so called because they required "all officers and subjects of the Crown to assist in their execution"--gave investigators broad power to search and seize property with "practically absolute and unlimited" discretion. (17)

      These much-hated searches often disregarded any expectation of privacy in containers. Section 5 of the Act of Frauds of 1662 expressly empowered English customs officials "to break open doors, Chests, Trunks & other Packagefs]" and to seize the objects inside. (18) At the end of the seventeenth century, Parliament extended this authority to English officials in the American colonies, (19) and the pernicious language from the Act of Frauds reappears in several surviving writs issued in the colonies before the Founding. For example, a Massachusetts writ issued in 1762 authorized officers to "make diligent search into any trunk chest pack case truss or any other parcel or package whatsoever." (20) General warrants, by the same token, were often used to authorize searches of private homes and permitted the "breaking open" of "desks, boxes, &c., and searching and examining [of] papers." (21)

      In 1761, Boston lawyer James Otis argued that writs of assistance were illegal in permitting unrestricted searches by officers of the Crown and allowing those officers to "break locks, bars, and every thing in their way." (22) Often, colonists specifically identified the...