If you’re arrested or detained by police, do they have the right to search through your phone for data that will incriminate you without a warrant?
The answer is yes, no, or maybe, depending on where it happens and who the judge is.
In fact, this is one legal issue that courts have managed to return just about every answer possible, and thus far there is no consistency in ruling. The only thing that’s clear is that the nation’s courts need to come to some sort of consensus to eliminate the legal headaches involved.
This may change soon. On Thursday, a Senate committee will address the issue by considering limited changes to the Electronic Communications Privacy Act, a 1986 law that regulates how the government can monitor digital communications. Courts have used it to permit warrantless surveillance of certain kinds of cell phone data.
The issues are complicated and multi-faceted. Are voicemails fair game to listen to without a warrant, or are they considered business records owned by the phone company? (Voicemails are generally stored on the providers’ servers.) What about text messages, which are stored on the phone itself? If you listen to a call on speaker and someone else overhears it, do you still have an expectation of privacy?
“The courts are all over the place,” Hanni Fakhoury, a criminal lawyer with the Electronic Frontier Foundation, a San Francisco-based civil liberties group, told the New York Times. “They can’t even agree if there’s a reasonable expectation of privacy in text messages that would trigger Fourth Amendment protection.”
What’s clear is that the proliferation of technology today has left existing laws far behind, and judges and juries are literally having to make up interpretations as they go along. Cell phones aside, there is a whole other new frontier of law yet to be defined in social media. (Can a Tweet post be counted as a confession? Can police use a photograph from a Facebook account as evidence, particularly if it’s not the accuser’s account?)
The real question is, even if these issues are defined by law, will judges and juries be able to understand the technologies well enough to apply them?
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