Monday, February 3, 2014

Cellphone searches, is your 4th Amendment rights compromised?

At the center of discussion across the nation on rights of privacy is a little tool which more than 90 percent of Americans have: the cell phone, smart phone or variation of (personal device).

Why the crucial tool is a central point of discussion, other than a great way to keep track of you, is the enormous amount of data it can collect and holds on you and the ease government can get access to it. To give you perspective, just think of the personal data you have in your desk drawers and cabinets.  Some of it more than likely can be carried in your "personal device".  Also technology is increasing the amount of data you can store on your personal device.  Those files and data would have 4th Amendment protection and would be off limits if they were in your home.  Government would need a search warrant.  But do cops need a warrant if your records and data are in your "personal device"?

In a number of data requests I have done with law enforcement agencies it is not clear.  Some agencies require a search warrant.  Other law enforcement agencies may be doing a search of your smart phone (personal device) based on an exception to the 4th Amendment which the US Supreme Court has allowed.

The "exception" happens when you are arrested, the Supreme Court has held the person and the area squarely around that individual can be searched, that also includes containers in the person's control.

Hence, juxtaposition of technology and the challenge to our privacy and liberty rights......the "cell phone extraction device".  What a "cell phone extraction device" is easily explained in an article named:  "The gadgets police use to snarf cell phone data"

I asked in my data requests whether or not the law agencies had this new tech tool. These devices can be hooked to smartphones/iphones, ie and retrieve phone numbers, text messages, call history, photos, calendars, and documents, etc,.  Many of the urban law enforcement agencies have either one or up to three of these type of devices. These tech tools are inexpensive ranging from $5000 to $20,000.  One of the biggest providers of these type of devices is a company called Cellebrite.

So who is to make sure that our liberty and privacy rights are not being violated or compromised?  The Legislature, the Courts, or you.  I would suggest you.  Start asking your local Sheriff and Police Chief about their policies and whether or not they use a search warrant when they use this "extraction device" and when they use the "exception".

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