The Right to Privacy as it Applies to the Smartphone Era
This summer Americans learned that the National Security Agency over the past several years has collected data on citizen’s internet searches and telephone calls. With the cooperation of numerous telecommunications companies, the NSA monitored millions of Americans and gathered information including call metadata and call logs. Widespread debate ensued over privacy rights and the reasonableness of the NSA’s intrusion, if any, upon those rights.
Though the NSA focused its information collection efforts on the data and call traffic emanating from personal devices such as smartphones, courts have just recently begun addressing the separate but related issue of information stored on the phones themselves. The Kansas Court of Appeals issued an unpublished opinion in 2009 in the case of State v. Isaac affirming its state’s citizens right to privacy in their telecommunications. Police arrested Azim Isaac in 2007 and, while booking him into jail, answered several incoming phone calls and reviewed text messages on his cell phone without a warrant or Mr. Isaac’s consent. The Court ruled that the police could not search the content of a defendant’s phone, including the text messages, without a warrant. The Court reasoned that a modern cell phone is comparable to a personal computer, and applied the general rule that, unless an exception applies, a search warrant is required to search a computer’s hard drive. Though subject to certain exceptions, the Court held that police must obtain a warrant before searching a person’s cell phone.
Not every jurisdiction or Circuit follows the Kansas rule however, and there is no consensus opinion on whether police may search a cell phone without a warrant. The Obama administration has recently weighed in on the issue by filing a petition with the Supreme Court, requesting it rule that the Fourth Amendment allows for warrantless cell phone searches. The Court has not yet accepted this case, United States of America v. Brima Wurie, for review so it is currently unknown if it will even consider the issue. Even if the Court does accept the case for review, the cell phone in question was an older flip phone that is not comparable to an Android or iPhone “smart” phone that currently comprise somewhere between 50-60% of cell phones currently in use in the United States. Because of this, any decision would be distinguishable, and therefore subject to further review, if a similar case involving a smart phone came before the Court in the future. Between the NSA’s data collection activities and the Supreme Court’s potential ruling regarding the police’s ability to conduct a search of a cell phone without a warrant, the question of how much privacy we possess in our communications and personal cell phones is very much in the air. For assistance with this or any other litigation matter, please contact Aaron Good at agood@klendalaw.com.
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