Judges and lawmakers across the country are wrangling over whether and when law enforcement authorities can peer into suspects’ cellphones, and the cornucopia of evidence they provide.
A Rhode Island judge threw out cellphone evidence that led to a man being charged with the murder of a 6-year-old boy, saying police needed a warrant. A court in Washington compared text messages to voice-mail messages that can be overheard by anyone in a room and are therefore not protected by state privacy laws. In Louisiana, a federal appeals court is weighing whether location records stored in smartphones deserve privacy protection, or whether they are “business records" that belong to the phone companies.
“The courts are all over the place," said Hanni Fakhoury, a criminal lawyer with the Electronic Frontier Foundation, a San Francisco-based civil liberties group. “They can’t even agree if there’s a reasonable expectation of privacy in text messages that would trigger Fourth Amendment protection."
The issue will attract attention Thursday when a Senate committee considers 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 cellphone data. A proposed amendment would require the police to obtain a warrant to search email, no matter how old it is, updating a provision that allows warrantless searches of emails more than 180 days old.
As technology races ahead of the law, courts and lawmakers are still trying to figure out how to think about the often intimate data that cellphones contain, said Peter Swire, a law professor at Ohio State University. Neither the 1986 statute nor the Constitution, he said, could have anticipated how much information cellphones are privy to, including detailed records of people’s travels and diagrams of their friends.
“It didn’t take into account what the modern cellphone has — your location, the content of communications that are easily readable, including Facebook posts, chats, texts and all that stuff," Swire said.
Judges across the country have written tomes about whether a cellphone is akin to a “container" — like a suitcase stuffed with marijuana that the police might find in the trunk of a car — or whether, as the judge in the Rhode Island murder case suggested, it is more comparable to a face-to-face conversation. That judge, Judith C. Savage, described text messages as “raw, unvarnished and immediate, revealing the most intimate of thoughts and emotions." That is why, she said, citizens can reasonably expect them to be private.
There is little disagreement about the value of cellphone data to the police. In response to a congressional inquiry, cellphone carriers said they responded in 2011 to 1.3 million demands from law enforcement agencies for text messages and other information about subscribers.
Among the most precious information in criminal inquiries is the location of suspects, and when it comes to location records captured by smartphones, court rulings have also been inconsistent. Privacy advocates say a trail of where people go is inherently private, while law enforcement authorities say that consumers have no privacy claim over signals transmitted from an individual mobile device to a phone company’s communications tower, which they refer to as third-party data.
The Supreme Court has not directly tackled the issue, except to declare, in a landmark ruling this year, that police must obtain a search warrant to install a GPS tracking device on someone’s private property.
“We are in a constitutional moment for location tracking," said Ben Wizner, director of the American Civil Liberties Union’s Speech, Privacy and Technology Project. “It’s percolating in all these places."