Initial Reactions to Riley v. California

Yesterday, the Supreme Court unanimously ruled that police must obtain a warrant prior to searching the cell phones of the people they arrest in Riley v. California. In an opinion widely heralded as a resounding victory for privacy in the digital age, Chief Justice Roberts wrote:

Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple—get a warrant.

Much has already been written about the landmark decision. Here are some initial reactions to Riley from the law and technology community:

• Orin Kerr on the significance of Riley and his six key takeaways from the opinion
• Marcy Wheeler on surveillance and the interplay between Riley and U.S. v. Jones 
• Reporters Committee for Freedom of the Press on the impact of the decision for journalists
• Sarah Jeong on the Supreme Court's understanding (or lack thereof) of technology
• Adam Liptak on the Supreme Court, technology, and privacy
• Matt Kaiser on the potential impact of Riley on search warrants to ISPs
• Jay Stanley on how things could have turned out in Riley had the government won
• Julian Sanchez on a Fourth Amendment loophole closed (bonus: Jay Z-inspired lede)
• Josh Stearns on why Riley is a win for press freedom
• Nilay Patel on the Supreme Court's major technology rulings
• Jennifer Granick on the most important takeaway from Riley: digital is different
• Farzaan Ijaz and Amie Stepanovich on a step in the right direction by the Supreme Court
• Marc Rotenberg and Alan Butler on the Fourth Amendment in the digital age
• Kyle Graham on how Riley won't change much in the field
• Paul Bernal on what courts in the European Union can learn from Riley
• Stephen Schulhofer on how Riley may impact warrantless surveillance and the third party doctrine
• The Onion on how ordinary Americans are reacting to Riley

Twitter also weighed in on the case. Below are some thoughts on Riley in 140 characters or less: 

After today's Sup Ct. ruling: Getting the list of #s you've called from your phone, warrant. Getting them from your phone company, subpoena.
— Christopher Soghoian (@csoghoian) June 25, 2014

Did SCOTUS just implicitly validate the "mosaic" theory? pic.twitter.com/SkV21d9uQp
— Hanni Fakhoury (@HanniFakhoury) June 25, 2014

"Get a warrant." Noted hippies, @EFF, @ACLU, and the Chief Justice
— emptywheel (@emptywheel) June 25, 2014

Serious question: does the @EFF cell phone sticker saying "I do not consent to the search of this device" now carry a bit of legal weight?
— Trevor Timm (@trevortimm) June 25, 2014

Kudos to @OrinKerr for getting cited not once but twice in Riley, the new SCOTUS cell phone search case!
— jennifer granick (@granick) June 25, 2014

Riley ruling is really, REALLY important in light of Atwater v. Lago Vista. https://t.co/fAojepiZSP
— Julian Sanchez (@normative) June 25, 2014

Given what Riley says about the cloud, a cautious DHS border agent would stop searching the social media accounts of seized cell phones asap
— Catherine Crump (@CatherineNCrump) June 25, 2014

I will continue to update this post with additional writings as they are published. If I have missed any, please comment here or reach out to me on Twitter @natnicol.

This post was updated on June 26, 2014 at 1:59 p.m. MDT, and again at 2:21 p.m. MDT.
This post was updated on June 27, 2014 at 1:15 p.m. MDT.

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Professor Danielle Keats Citron on the criminalization of “revenge porn” and a cyber civil rights agenda

A recent CNN opinion by Professor Danielle Keats Citron, a law professor at the University of Maryland Francis King Carey School of Law and an affiliate scholar at the Stanford Center on Internet and Society and Yale Information Society Project, calls for the criminal law to take action in deterring and punishing “revenge porn.” Jeffery defined revenged porn in an earlier post as an individual posting “nude images of someone they know on the Internet - often doing so after the end of a relationship.”  As Professor Citron details, the impact on a victim's future employment opportunities, mental and physical well-being, and the overall impact on his or her daily life is no doubt striking.

The criminalization of revenge porn has captured headlines recently due to the introduction of California’s SB 255, which is the latest attempt to criminalize the act. Under the current language of the Bill,

any person who photographs or records by any means the image of another, identifiable person with his or her consent who is in a state of full or partial undress in any area in which the person being photographed or recorded has a reasonable expectation of privacy, and subsequently distributes the image taken, with the intent to cause serious emotional distress, and the other person suffers serious emotional distress would constitute disorderly conduct subject to that same punishment.

However, as Professor Citron outlines, states have substantially fallen behind on criminalizing revenge porn. New Jersey Code 2C:14-9, one of the only laws of its kind, has specifically criminalized revenge porn activities. Some state laws address the issue of distributing sexually explicit images more broadly, such as Texas Penal Code 21.15(B), which prohibits "visually record[ing] another (A) without the other person's consent; and (B) with intent to arouse or gratify the sexual desire of any person." These laws, however, run into a variety of problems when applied to common revenge porn scenarios, one of which is the likelihood that the victim, while in a relationship with the hypothetical poster, consented to the creation of the visual recording.

Professor Citron has written extensively on the issue and has advocated for a “cyber civil rights” agenda highlighted in this 2009 Boston University Law Review article. This 2009 proposal spawned a 2010 symposium hosted by the Denver University Law Review (Part One, Part Two, and Part Three of this symposium are available at the Denver University Law Review Online).

Some of Professor Citron’s other publications on both “revenge porn” and “cyber civil rights” more generally can be found over at Concurring Opinions. Below are some of her more recent posts on the topic  

Blaming the Victim: Been There Before, Concurring Opinions, Feb. 1, 2013 (a response to Professor Mary Anne Frank’s post on “revenge porn”)

Revenge Porn Site Operators and Federal Criminal Liability, Concurring Opinions, Jan. 30 2013 

The Importance of Section 230 Immunity for Most, Concurring Opinions, Jan. 25 2013 

Revenge Porn and the Uphill Battle to Pierce Section 230 Immunity (Part II), Concurring Opinion, Jan. 25 2013

Professor Citron’s CNN opinion is a great read and I applaud her advocacy on the adoption of a cyber civil rights agenda. Some form of response is sorely needed to combat the more unsavory activities occurring online at the expense of others. I do, however, hope that those who are hesitant to react through regulatory measures in fear that such a response could chill free speech protections continue to take an active role in voicing their concerns. It is only through active and open discussion that the criminalization of discriminatory and abusive activities occurring online can properly conform to the protections of the First Amendment. As cyber civil rights issues continue to take shape throughout the country, such as those associated with the revenge porn debate,  I would advise keeping a close eye on the insightful work of Professor Citron.

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