Why Are Police Allowed to Break Into Your Phone?

The judicial system around the country is sharply divided on the legality of searching cell phone records and using that evidence for the prosecution of criminal suspects. A New York Times review of court cases and legislation shows that there are no uniform rules when it comes to whether law enforcement can search cell phone records and use the data as evidence.

In Rhode Island, a judge threw out evidence used to convict Michael Patino, a 30-year-old resident of the state, because, according to the judge, the police obtained cell phone data improperly. But a Washington court said that cell phone text messages are similar to voice mail messages that can be heard by anyone in a room, and are therefore not subjected to privacy laws.

And beyond the issue of using evidence obtained by cell phones in prosecutions are disputes about how that data is obtained in the first place. In Ohio, a court ruled that a warrant is needed to search cell phones because it holds large amounts of private data. Meanwhile, in California, the highest court said “the police could look through a cellphone without a warrant so long as the phone was with the suspect at the time of arrest,” The New York Times reports.

The attention to the use of cell phone data comes a few months after the revelation that “cellphone carriers reported that they responded to a startling 1.3 million demands for subscriber information last year from law enforcement agencies,” as the New York Times reported.

“The courts are all over the place,” the Electronic Frontier Foundation’s Hanni Fakhoury told the Times. “They can’t even agree if there’s a reasonable expectation of privacy in text messages that would trigger Fourth Amendment protection.”

The issue of cell phone data use by law enforcement in criminal cases will attract renewed attention on Thursday, when the Senate holds a hearing on possible changes to a 1986 law that allows for warrantless searches of e-mails that are more than 180 days old. Some lawmakers want an amendment to the law to force police to obtain search warrants before searching e-mail records.

Law enforcement authorities have also argued that they should be able to find out a suspect’s location due to smartphone signals. Civil liberties advocates say that data showing where people go is private, while law enforcement claims “that consumers have no privacy claim over signals transmitted from an individual mobile device to a phone company’s communications tower,” the Times states.

The courts and legislatures around the country are also divided on the question of tracking a suspect’s location. A few states have legislation pending that would require police to obtain a warrant before getting a suspect’s location from cell phone data carriers. California passed such a law, but their governor vetoed it because he questioned whether the law was “the right balance between the operational needs of law enforcement and individual expectations of privacy.”

The Supreme Court has yet to weigh in directly on these questions. But last year, the highest court ruled that law enforcement had to obtain a search warrant to install a GPS device on someone else’s property.

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