Unlike some other countries, the United States does not subscribe to the proposition that the government is entitled to intercept all of the communications of the American people. The government’s ability to use information obtained under certain circumstances is further limited by criminal procedure laws. That being said, technology has outrun the law, creating a tug-of-war between search and seizure law and handheld electronic devices that can store enormous amounts of private information. “Cloud-based” storage and sync programs and most cellular phones now allow users to obtain and store large amounts of sensitive and private information that they can either transfer to various devices, or carry with them on a handheld device, such as an iPhone. Though various software companies, for example Spideroak, and programs, such as the Apple Text Messaging Protocol, can offer higher levels of security to users, increasingly tech-savvy law enforcement officers can now pull most information from a file or phone.
In this climate, it is not surprising that politicians, advocacy groups and judges are hotly debating the applicability requirement for a warrant when searching the phone of an arrested person. While the issue is far from being universally settled, several state Courts and the Seventh Circuit District Court have rendered decisions on warrants for cell phone searches. United States Senators have also sponsored legislation that would help to settle the issue.
According to CNet.Com, the starting point for discussion regarding search and seizure of electronic communications is the 1986 Electronic Communications Privacy Act. Under that Act, law enforcement officers are entitled to seize e-mail messages more than 180 days old with an administrative subpoena, which does not require the probable cause element that a warrant does. In 2010, the Sixth Circuit Court of Appeals held in US v. Warshak, that Americans have a reasonable expectation of privacy in their e-mail communications. The most recent development with regards to the ECPA comes from the United States Congress. The Electronic Communications Privacy Act Amendments Act of 2013, sponsored by Senate Judiciary Committee Chairman Patrick Leahy of Vermont and Senator Mike Lee of Utah, was introduced this March. According to Senator Leahy’s website, the legislation would amend the ECPA by establishing a search warrant requirement to obtain e-mails and other electronic communications, when those communications are stored using a “cloud based” system. The legislation would also require that the government notify individuals that their e-mails and other communications have been disclosed within ten days of obtaining the warrant. Several states, such as Florida, Delaware, Maryland and Oklahoma have introduced similar legislation at the state government level.
In addition to the legislation, state courts have issued a variety of opinions on the more specific issue of warrantless cell phone searches. The New York Times reports that an Ohio court ruled that police needed a warrant to search a cell phone because it could contain much more information that the traditional notepaper carried in one’s pocket. Meanwhile, a Rhode Island judge suppressed evidence obtained from a cell phone, while a Washington court ruled that text messages are comparable to voicemail messages, and therefore do not require the protection of privacy laws. The Seventh Circuit U.S. Court of Appeals ruled on the issue this March, holding that law enforcement officers do not require a warrant to search an arrestee’s cell phone, because a cell phone is akin to a diary.
The law on the search and seizure of information on an arrestee’s cell phone, or other electronic communication is far from clear cut. If you have been arrested and your electronic information has been obtained by law enforcement officers, an experienced attorney may be able to determine whether the search and seizure was lawful. An experienced attorney can represent you in court and help you understand the charges against you. Contact an experienced attorney immediately for a confidential consultation.