Senate to Reconsider Warrantless Cell Phone Searches

A Senate committee will consider limited changes to the Electronic Communications Privacy Act, which could alter how courts interpret the use of cell phone data.

by / November 26, 2012
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Over the past few years, police have realized that cell phone data -- such as text messages and GPS coordinates -- are useful tools in criminal cases, and a privacy battle regarding such information has ensued. In some cases, courts allowed warrantless cell phone searches; in other instances, courts threw out police-obtained cell phone data, citing the Fourth Amendment.

But a blanket ruling on how courts interpret the use of such data in their cases could occur on Nov. 29, when a Senate committee will consider limited changes to the Electronic Communications Privacy Act (ECPA).

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

The ECPA was made law in 1986, and courts have used the it to allow warrantless searches of cell phone data and other types of data in the past. The ECPA allows for emails older than 180 days to be accessed by law enforcement without a warrant, but this also could change after the upcoming Senate committee hearing.

While cases involving Fourth Amendment rights have occasionally indicated legal gray areas, the concepts of digital technology and virtual data have further confused interpretations of the centuries-old constitutional right. Judges have debated whether a cell phone should be compared to something like a container, such as a briefcase filled with illicit drugs, or with something more abstract, like a private conversation that must be allowed to remain private.

Information requested by police ranged from text messages to GPS information that can be used to track suspects. Cell phone carriers responded to 1.3 million police requests for cell phone data in 2011 alone, and with the smartphone industry steadily growing, this issue is not likely to disappear from public discussion soon.

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