US judges divided on police searches of cell phones

JUDGES and lawmakers across the country are wrangling over whether and when law enforcement authorities can peer into suspects’ cell phones, and the cornucopia of evidence they provide.

A Rhode Island judge threw out cell phone evidence that led to a man being charged with the murder of a 6-year-old boy, saying the police needed a search 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 on 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 cell phone data. A proposed amendment would require the police to obtain a warrant to search e-mail, no matter how old it is, updating a provision that al- lows warrantless searches of e-mails 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 cell phones contain, said Peter P. Swire, a law professor at Ohio State University. Neither the 1986 statute nor the Constitution, he said, could have anticipated how much information cell phones are privy to including detailed records of people’s travels and diagrams of their friends.

“It didn’t take into account what the modern cell phone has—your location, the content of communications that are easily readable, including Facebook posts, chats, texts and all that stuff,” Swire said.

Courts have also issued divergent rulings on when and how cell phones can be inspected. An Ohio court ruled that the police needed a warrant to search a cell phone because, unlike a piece of paper that might be stuffed inside a suspect’s pocket and can be confiscated during an arrest, a cell phone may hold “large amounts of private data.”

But California’s highest court said the police could look through a cell phone without a warrant so long as the phone was with the suspect at the time of arrest.

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, de- scribed 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 cell phone data to the police. In response to a congressional inquiry, cell phone 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.

Delaware, Maryland and Oklahoma have proposed legislation that would require the police to obtain a warrant before demanding location records from cell phone carriers. California passed such a law in August after intense lobbying by privacy advocates, including Fakhoury’s group. But Gov. Jerry Brown, a Democrat, vetoed the bill, questioning whether it struck “the right balance between the operational needs of law enforcement and individual expectations of privacy.”