What’s the difference between personal information and correspondence you have physically stored in your home, and similar information that’s on your cellphone? And what should police have access to without a warrant?
It’s a question that courts across the nation are dealing with it and one that arose here in Massachusetts on Wednesday, when the Supreme Judicial Court ruled that police don’t need a search warrant to look at the call list of a person’s cellphone during while searching that person’s personal property after an arrest.
However, in writing the court’s opinion for Commonwealth vs. Demetrius A. Phifer, Justice Margot Botsford cited other court cases that raise questions about the extent that law enforcement officials can access information stored on a cellphone.
“Today’s cellular telephones are essentially computers, capable of storing enormous quantities of information, personal, private, and otherwise, in many different forms,” Botsford wrote. “They present novel and important questions about the relationship between the modern doctrine of search incident to arrest and individual privacy rights.
“Although an individual’s reasonable expectation of privacy is diminished concerning his or her physical person when subject to a lawful arrest and taken into custody,” she continued, “the same may not necessarily be true with respect to the privacy of the myriad types of information stored in a cellular telephone that he or she is carrying at the time of arrest.”
The New York Times reported last month about divergent rulings in courts across the country regarding information stored on cellphones, such as a Rhode Island judge throwing out cellphone evidence obtained without a search warrant that led a man being charged with the murder of a 6-year-old boy.
A Washington court likened text messages to voice mail messages that can be overheard by anyone in a room, the Times reported, and ruled they are not protected by state privacy laws, while a federal appeals court in Louisiana is wrangling over whether location records stored in smartphones are private information or business records that belong to the phone companies.
Meanwhile, just last week the Senate Judiciary Committee approved a bill that if passed would limit law enforcement officials’ warrantless access to email, private Facebook posts and other information that’s stored on the Internet. CNET.com reported that tech firms including Apple, Google, Facebook and Twitter have urged Congress to update the Electronic Communications Privacy Act, passed in 1986, “and preserve the same privacy rights that Americans enjoy if their files are printed out and stored in a cabinet at home.”
What should police be able to search on a cellphone without a warrant? The call log? Emails and private Facebook or Twitter messages? GPS location data that track where the phone has been? Should it all be fair game, should it all require a search warrant, or is it a mix? Tell us what you think in the comments.