Mobile Devices Challenge Definition of Privacy

Monday, 26 Nov 2012 04:07 PM

By James Hirsen

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Smart phones, tablets, and other mobile devices are filled with highly personal data, including emails, photos, contact data, financial, and medical information.

It is the type of private material that was previously kept in one’s residence; such material was precisely the kind that was contemplated by the drafters of the Fourth Amendment to the Constitution.

tablets-and-phones.jpg
Phones are displayed at a Verizon store in Mountain View, Calif.
(AP Photo)
However, since technology appears to be outpacing legal reasoning, some courts have rejected the idea that during an arrest, the information contained within a smart phone would require a warrant prior to the search of its contents.

The U.S. Supreme Court has not specifically addressed searches of cell phones following an arrest, but a number of courts, including the Federal Courts of the Fourth and Fifth Circuits, have relied upon an exception to the Fourth Amendment, which was created by the high court and allows police officers to search objects in the possession or reach of an arrested person following an arrest.

State courts have been divided on the issue, with some allowing cell phone searches of a suspect without a warrant and others prohibiting such searches. However, the holdings lack both consistency and consensus and, due to the divergence of opinion, privacy advocates have looked to the Supreme Court to settle the matter, but the high court recently refused an appeal on the issue.

Since the courts are exhibiting a lack of clarity regarding the issue, legislation is necessary to bring some precision to the rapidly changing relationship between new media technology and the law.

This week a U.S. Senate committee will examine modifications to the 1986 Electronic Communications Privacy Act (ECPA). The decades-old legislation dealt with government use of data in digital communications, and some jurisdictions have cited the ECPA to allow surveillance of cell phone data without a warrant.

A bill was recently passed by the California state legislature to address the issue that would have required a warrant prior to a police search of an arrested suspect’s cell phone.

After the bill passed the California State Assembly 70-0 and the State Senate 32-4, which reflected an unusual amount of support from both Democrats and Republicans, Gov. Jerry Brown vetoed the measure, accommodating the law enforcement community and its public union allies.

Brown’s statement on the veto indicated the following: “Courts are better suited to resolve the complex and case-specific issues relating to constitutional search-and-seizures protections.”

In stark contrast to Brown’s statement, though, is modern history’s record, which demonstrates that the courts are remarkably incapable of dealing with legal issues that involve new media technologies.

James Hirsen, J.D., M.A., in media psychology, is a New York Times best-selling author, media analyst, and law professor. Visit Newsmax.TV Hollywood. Read more reports from James Hirsen — Click Here Now.

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