The digital age is evolving faster than our laws can keep up. In no area is this more relevant than in legal cases involving cell phones. Cell phones, especially smartphones that not only store data but also connect to remote data stored in the ‘cloud’, are virtual treasure troves of information. Think for a moment about what you have stored on your own phone such as pictures, videos, contact information, files, and more. At no other time in history have we been able to carry with us so much information in such an accessible way. While our phones afford us many benefits, they also raise some interesting legal questions. What constitutes invasion of privacy? Where exactly is the line between a legal search and a violation of our rights?
There have been recent cases in the news where someone has been caught breaking the law, their cell phone seized and searched, and the information discovered on the phone then led to a whole new investigation and additional criminal charges. The typical law-abiding citizen may say they have no objection to this type of search because the person involved had already broken the law and, if the search had not occurred, the person would have gotten away with other crimes. However, as a society, we need to look further into the issue in light of the Fourth Amendment.
The Fourth Amendment was established to protect citizens from unreasonable search and seizure. When it was established, it was focused on preventing law enforcement officials or military personnel from entering a home and searching it without having probable cause to suspect illegal activity was taking place. It also prevented those same officials from taking any property into custody unless the items they were looking for were specifically stated. You can easily see how this law might be difficult to translate to modern times and technology.
A cell phone is like a home in that, once you ‘enter it’, you can stumble upon a number of items or bits of information you weren’t necessarily trying to find. If a law enforcement official needs to specify what he is looking for in a home, he should also have to do so when he is searching a cell phone. This is really the only way our Fourth Amendment rights can be protected. However, the cases that have already gone to court on this subject matter are just beginning to establish some rules and, for the most part, cell phones still represent a gray area. While officials now must obtain a warrant to access a suspect’s phone, there is not a requirement to provide specific details of the search.
What does this mean for the average citizen? It means that if a law enforcement official asks for access to your cell phone, you can insist they obtain a warrant first. This is your first line of defense in upholding your privacy rights. As the laws begin to change to reflect new technology, it’s likely that warrants will start becoming more specific and state exactly what can be looked at and seized from phones, but this will take time.
Another important question is how far you have to go to assist in a search? If the Court grants a search warrant for your cell phone, do you have to provide law enforcement with your password? This answer is not altogether clear. You likely do not have to give law enforcement anything which would cause you to incriminate yourself. Requiring you to do so would violate your 5th Amendment rights. However, if your cell phone is unlocked with a fingerprint, you could be ordered to turn over your fingerprints since they are not protected. The difference is that you cannot be compelled to speak or say what’s on your mind. You can be compelled to give real or physical evidence.
If you are ever asked by law enforcement for permission to search your property, you have constitutional rights that come into play. It is recommended that you consult with legal counsel before making a decision that may you subject you to potential criminal charges.