Warrantless Searches By Police of Your Cell Phone

by Warner Todd Huston | April 25, 2011 11:16 am

News during this past week a story made the rounds that police in Michigan may be using a device in random traffic stops that instantly copies all the data on your cell phone and stores it for later use by police. It was said that this data copying is going on without consent and without a warrant. Michigan police are denying this claim, but the ACLU posted a letter warning them against this policy regardless. The fear here is, of course, that copying cell phone data without a warrant is a violation of the Fourth Amendment’s proscription against illegal search and seizure.

This device copies everything that is on your phone. Your contacts, your emails, your texts, other instant messages, what aps you use, web bookmarks and usage, GPS location info… every bit of data stored on your phone is instantly copied into the device and into the data base maintained by police.

Famed blogger Glenn Reynolds, a lawyer by trade, seems to think[1] that it is obviously a violation of the Fourth and that current law can even be used as precedent to assure that fact. Others are not so sure.

Can that kind of random cellphone search possibly be legal?… Probably not. Traditionally, a police officer may search a person when he makes an arrest. But a traffic stop isn’t an arrest. A police officer who pulls you over for an illegal lane change can arrest you if he sees contraband — a bag of marijuana, say — in plain view, but he cannot search your car just to see what he turns up. There’s even less justification for searching a cellphone. Even with an arrest, a warrant may be required to search a closed container: Just last year, the Ohio Supreme Court held that a cellphone is analogous to a closed container and cannot be searched without a separate warrant — and that’s for a search where someone has actually been arrested for a crime, not mere snooping during a traffic stop.

Reynolds also makes another excellent point about the legal quagmire that could arise even if the person stopped is silly enough to give police permission to use the data copying device under the I-have-nothing-to-hide excuse.

If you allow police to copy your data they will also get your contact’s information. Now those people have not consented to allow police to have their information, yet the police will have at least some of it anyway. Essentially you’ll be giving away other people’s personal info at the same time you are foolishly giving up your own.

Of course, Reynolds is correct that the police would have a legitimate reason to get all this info from your cell phone IF you are under investigation for perpetrating some crime or another. But it is completely illicit for cops to snoop through all your personal data without a warrant specifically allowing them to do so.

Unfortunately, not everyone is as sanguine as Reynolds is that this whole thing violates the Fourth Amendment[2]. That is why the Digital Fourth Amendment campaign[3] was started not long ago.

The D4A campaign is worried about the fact that there isn’t much by way of legal precedent to assure citizens that their cell phone data, their emails, and the data they’ve stored in could computing services or third party servers is secure from warrantless search.

The truth is, one can technically say that any data about you stored at Google or Facebook, your emails stored on GMail or Hotmail, your cell phone data zipping about on your wireless company’s data storage systems, your computer backup files stored at Carbonite or other remote backup services, all this data about you is not “in your personal possession,” the standard usually observed under the Fourth Amendment. Technically, all that data is actually stored on someone else’s computer systems. Technically it isn’t fully in your personal possession.

All this means that, again technically, all that data can be accessed by police without a warrant. Heck even without your being notified.

Our laws have not quite caught up to the current technological environment. The Digital Fourth Amendment campaign[3] was formed to make sure that the laws reflect a common sense application o our Constitution in today’s computer filled world.