Hey! That’s Mine!

Pardon the length of this post essay. The Fourth Amendment is important. The rights it protects are important. And technology and law are fighting here just as much as privacy and the needs of law enforcement. That said…

Get. Out. Of. There.

No, Michigan State Police Officer, you absolutely, without a doubt, positively, MAY NOT suck all the data out of my cell phone with your handy “extraction device.” Unless, of course, you have a warrant. But chances are, you don’t have a warrant to arrest me or search my stuff when you pull me over for speeding. So, again, NO! you may not have my cell phone and you may not seize the contents of it. Or can you?

ACLU: State Police Using Cellphone ‘Extraction’ Device

The Fourth Amendment protects people from unreasonable searches and seizures by the government. Since we’ve got government actors in the form of state police officers, the Fourth Amendment applies. The first question is whether cell phone owners have a reasonable expectation of privacy in what is stored on their phone when they are pulled over. The reasonable expectation has long been defined by the Supreme Court in Katz. Justice Harlan explained that there is a reasonable expectation of privacy if 1) the subject of a search expected privacy, and 2) society generally agrees that such an expectation of privacy exists.

Though it would seem that people are becoming increasingly prone to making available all sorts of their personal information on the Internet, one does not hold their cell phone out to the world as a source for information. Facebook profiles are public. Cell phones – with their text messages, pictures and videos, and call histories– are private. Your cell phone bill (which has all that info) isn’t searchable on Verizon’s website. That’s because it is only for your consumption. It is private. You don’t expect others to have access to it. You may not care if they do, but it is reasonable to expect privacy in it, as well. One never relinquishes control of their cell phone and does not expect the general public to rummage through it. Cf. California v. Greenwood.

People also take measures to secure their privacy, either by password protecting their phones or using programs to hide personal pictures and videos from snooping eyes. They also keep their phones on their person, or at least relatively close. A text message in a phone is unlike a paper note, folded up and placed in a book which can then easily be seen by anyone who might pick up the book and find the note. In Katz there was a reasonable expectation of privacy when Katz went into a phone booth and closed the door. Closing the door of the phone booth made it private. So just like a warrant was required to listen into the phone booth, there should be no distinction with personal data and messages on a cell phone. Moreover, text (or picture or video) messages, like email, are stored in inboxes. E-mail requires a warrant to search, and there should be no distinction.

As technology advances, the Court has held that utilizing technology that is not widespread throughout the public to gather information, beyond what the senses would reveal, is a search. See Kyllo. A warrant is necessary in such cases because using the technology allows the government to go beyond what the general public can find out. Of course, if information is available to the general public, there can be no expectation of privacy. But the totality of what is stored on personal cell phones is not information that is available to the general public. And using a device to extract it is certainly not something that people freely go around doing — even if they wanted to. So, while acquire a cell phone’s GPS data might be okay because it is only showing the police what you are making public — where you are (See Knotts) — acquiring what is stored on the phone in personal messages and logs is not okay, because it is not showing anything that is public information, and indeed the information is reasonably private. See Karo.

Society, I would argue, shares this expectation of privacy. As a whole, society values keeping some information to ourselves. We might make our names, various interests, even some pictures or location data available. But that does not invite the world into our data repositories. There is a line here.

It is worth noting that the Supreme Court, last term in Quon, did not decide whether there was a reasonable expectation of privacy for text messages on employeer issued devices. However, the Court did assume, arguendo, that there was an expectation of privacy. Concluding that people reasonably expect privacy in their cell phones, the government cannot freely harvest the personal data stored inside without a warrant, unless the search is reasonable. There is no exception to the warrant requirement that would justify the police, in a routine traffic stop, sucking all the data out of your cell phone — especially without any suspicion of a crime (but even still, reasonable suspicion is not enough to do the search — it might only be enough to pull you over; probable cause is required to search). The most plausible “exception” argument to the warrant requirement would be that the special needs doctrine applies, as in Quon, or that police are fearful that once an encounter between police and a citizen begins, the citizen will delete any incriminating evidence from the cell phone. But the expectation of privacy clearly trumps the overbroad police interests here. Sure, police can frisk people. But what they are doing is not akin to a frisk. A cursory glace at a phone will not reveal evidence of criminal activity or imminent danger, like a cursory pat-down will. Extracting phone data is a full-on search. Another note: consent to search can vitiate the expectation of privacy, so if you freely hand your phone over, the cop can look through it all he or she wants.

Back to the warrant requirement. To get a warrant, the government must convince a neutral magistrate that they have probable cause that in doing the search, police will find evidence of a crime. At the point of a routine traffic stop, police do not have probable cause that a crime is being committed (except that you are speeding, or a tail light is out, or something similar). If they smell marijuana or see a weapon, then they have some probable cause. But without something more, than they can have no reasonable, rational belief more than a hunch or suspicion that the personal data on your cell phone is related to criminal activity. If they want to know who you called, they can subpoena your service provider. The Fourth Amendment protects us against the imbalance in power between law enforcement and privacy interests, and probable cause is a check on police. If they can just plug and chug your private, personal data, then there is no check and it’s a one-way street. And that’s not okay.

Ok. That wasn’t as long as I thought it would be. In conclusion:

DRIVERS: You have the right to not face unreasonable intrusion by the government into your private matters. You do not need to hand the police your cell phone. It will not make your case easier or better if you do. They cannot arrest you if you assert your rights. You don’t have to consent to a search (so don’t give them your phone if you don’t want to.*****

About Brett Manchel

Really? Another "about me" box? I don't know what to say.
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5 Responses to Hey! That’s Mine!

  1. Chad Studer says:

    This is ridiculous. I have all my bank account info on my phone as I am sure a lot of people do now days with smart phone apps from just about all the major banks, not to mention those apps that store all your log ins and passwords for every site you frequent such as online bill pay for utilities and credit cards. To allow the police access to this info for no reason is absolutely ridiculous. I hope I get pulled over and asked for my phone just so I can refuse! (Ok not really I have no money to pay a ticket.) But this really ticks me off!

  2. Annalisa Grunwald says:

    It sounds like it will be a while before we know the extent to which this is being done. The ACLU requested usage logs from the Michigan troopers’ devices, but the state police requested more than half a million dollars to pay for retrieval of the documents and records.

    I have heard of these searched being done through consent, but what about incident to arrest? Or as a “container” in your vehicle? Brett, do you happen to know the situation in which most of these searches occur?

    • Brett says:

      Thanks for the comments!

      They are done through consent, technically. Police pull people over, and then ask for their phones. People hand them over. I guess it is not coercive, but that’s for another blog post. People really need to know their rights! So with that, I guess so far all the searches have been legal (if the consent was valid).

      But, as you are getting at in your comment, once there is probable cause, the situation is entirely different. Texts and call history are important in investigating many crimes, and there can’t be an expectation of privacy in criminal activity. In such a circumstance, they can probably get some records without a warrant. (But, these devices take EVERYTHING, and warrants normally are required to be as narrow as possible). But assuming that you’re pulled over for a routine traffic stop, and that is all, and that is all it remains, then there is no probable cause to believe there is criminal activity.

  3. Pingback: Police Can Download Your Personal Data Against Your Will « BUNKERVILLE | God, Guns and Guts Comrades!

  4. There is also a group out there flogging the 4th Amendment problems…

    The Digital Fourth Amendment


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