Can your fictional law enforcement officers search a cell phone – for a voice mail, a text, or a record of a call made or received – without a warrant? Depends. State law varies, as do interpretations of federal law, and the laws are changing rapidly.
Here are some of the issues, highlighted by a recent New York Times article, with a few of my own observations.
Does the right of privacy apply? A court in Washington said no, comparing cell phone text messages to voice mail messages left on a land line, which are broadcast both when recorded and when played back, so anyone can hear them. I expect the opposing argument is that a cell phone can generally only be listened to – or read – by one person at a time, typically its owner, unless the owner chooses to push speaker or show the text to someone else, and I think that might be the more persuasive argument.
Or is the data recoverable from a phone a “business record” belonging to the phone company – meaning the individual phone owner has no right of privacy in the data? In my view, this is an outdated argument, based on old technology. Used to be, when all phones were land lines, that little or no data could be obtained from the phone itself; records of what calls were made, when, and to whom could only be obtained from the phone company, and records were not usually kept of calls received. Now, phones themselves carry so much information – both content, like a text message, and data records, like calls made or sent. How does that change the analysis?
A voice mail message may not be left on the phone itself – the user has to call a number to retrieve it. Does that mean it should be treated differently from a text message?
And what about email? Federal law currently allows LEO to obtain emails more than 180 days directly from the ISPs, without a warrant or notice to the account owner. The Times reports that Congress is currently considering a proposal to require a warrant, no matter how old the email.
The Times also notes that some decisions have turned on whether the suspect was carrying the phone at the time of arrest, and that rulings on access to location records also differ.
The Supreme Court has not yet addressed the issue, although as I wrote a few months back, it has held that warrants are required before LEO can install a GPS tracking device on a vehicle. (And in another article, I noted that changes in technology allow LEO to access Skype chats, with a warrant, though not audio or video calls.) Congress is currently considering changes to laws governing privacy in electronic communications — primarily email and data kept by service providers. This AP report summarizes the proposed changes, and reports that many prosecutors and LEO say increased privacy measures won’t hinder their investigations — many have been working under stricter requirements for years
Remember that courts issue warrants only if LEO shows “probable cause” to believe that evidence of a particular crime will be found in the specific place to be searched. Warrantless searches allow LEO to search without meeting that threshold.
What’s a mystery writer to do? First, be aware of the issues. If your story turns on warrantless access, consider letting one of your officers, a suspect, or a records custodian ask if it’s legal. The simple reply? “It is today.” The phone owner may consent to a search. The phone may be lost or abandoned, making some level of search necessary to find the owner. Turn the problem into part of the plot, with your defense lawyer challenging the evidence in court. Write around it, by getting the info to your LEO some other way. Or, as a last resort, confound everyone by creating a character who doesn’t even carry a cell phone or use email!