In its opening brief in Klayman v. Obama, the United States cited Riley v. California, noting that the case was limited to search incident to arrest, and did not implicate “inspection of aggregated digital information.” In other words, the government argued, Riley did not cast any doubt on Smith v. Maryland:
The preliminary injunction under review in these appeals concerns solely telephony metadata and has nothing to do with uses for cell phones beyond calling.17
17 The Supreme Court made clear in Riley that “[b]ecause . . . these cases involve searches incident to arrest, these cases do not implicate the question whether the collection or inspection of aggregated digital information amounts to a search under other circumstances.” 134 S. Ct. 2489 n.1 (emphasis the Court’s). The question here, by contrast, is whether obtaining telephony metadata is a “search” at all. See id. at 24 (refusing to apply Smith because “[t]here is no dispute here that the officers engaged in a search”). The purpose and operation of the Section 215 telephony-metadata program, moreover, differ critically from the searches of a cell phone’s content incident to arrest in Riley. For example, the Section 215 telephony-metadata program is conducted pursuant to orders issued by the Foreign Intelligence Surveillance Court, and review of the metadata requires a showing of reasonable suspicion, whereas the cell-phone searches at issue in Riley were conducted without any judicial authorization or threshold showing of suspicion.
I previously noted that the Court seemed to cite Smith favorably in Riley.
We also reject the United States’ final suggestion that officers should always be able to search a phone’s call log, as they did in Wurie’s case. The Government relies on Smith v. Maryland, 442 U. S. 735 (1979), which held that no warrant was required to use a pen register at telephone company premises to identify numbers dialed by a particu- lar caller. The Court in that case, however, concluded that the use of a pen register was not a “search” at all under the Fourth Amendment. See id., at 745–746. There is no dispute here that the officers engaged in a search of Wurie’s cell phone. Moreover, call logs typically contain more than just phone numbers; they include any identify- ing information that an individual might add, such as the label “my house” in Wurie’s case.
Stay tuned.