Government Searches and Cell Phones

In light of the new OS and Apple iPhone 6 release I thought it would be appropriate to quickly write about our cell phones and privacy. I along with many people have been eagerly waiting for the iPhone 6 and have been looking forward to strolling over to the Apple store at the City Creek Mall here in Salt Lake City to make my purchase. That being said, the new OS release is particularly interesting, because it changes the way that Apple stores or handles user passwords. Apple announced that as a part of their new system, that they would not be storing passwords belonging to users and therefore would not be able to grant the Government access to a user’s personal and private phone. It is, however, important to remember that the Government can still gain access to your phone. Google quickly announced a similar upgrade on the heels of the OS release.

Modern cell phones are undoubtedly private. Our smart phones contain GPS tracking data, contact lists with hundreds of emails and phone numbers, our private banking information, all of our pictures, calendar events, and much more. The wide breadth of data stored on a cell phone is arguably more in-depth and detailed than our filing cabinets, desks, and maybe even computers. Interestingly, our privacy interest in cell phones, however, has only recently been acknowledged by the United States Supreme Court.

In a previous post, I stated that in in a landmark decision in June of this year, the United States Supreme Court determined that a cell phone may not be searched incident to arrest. This is a significant departure from established practices, and a much needed acknowledgment of the role of technology in our lives. Previously to the decision reached in Rylie v. California, individual States had come to different conclusions regarding cell phones and searches incident to arrest. Some States, such as California, used traditional criminal procedure and allowed the Government access to the entirety of your cell phone upon your arrest. Other States, such as Ohio, recognized that our cell phones are anything but traditional, and allowing their search incident to arrest is overly broad and unnecessary. The courts are already applying Riley. 

Now that the law has been settled, you can be assured that the Government cannot wantonly search your cell phone upon your arrest. The Government can, however, search your cell phone if you grant them permission, or upon the issuance of a warrant for the information contained on your phone. In a police encounter it is, therefore, very important to remember that you do not have grant officers permission to search your phone and that you may request that they obtain a warrant specifying the need and justification for the search. When considering your position in a police encounter, and whether or not you should grant permission, you should remember that even a good-faith concession will allow the Government to access a significant amount of information compromising a serious amount of personal privacy.

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