It would be nice if there was one simple answer to the above question—if we could get a consensus on when a warrant was needed to infringe on the privacy of citizens. But the “courts are all over the place” as Hanni Fakhoury with the Electronic Frontier Foundation says. One state may say a warrant is needed for any cell phone infringement, while others say text messages and emails are fair game. So, how can we make sense of this jumbled mess of court rulings?
This week, a Senate committee was tasked with considering changes to the Electronic Communications Privacy Act, the law that says how the government can monitor all electronic communications. The law was written in 1986, before email was commonplace for nearly everyone and way before text messages and cell phones. Changes, in other words, are long overdue.
But, how they would change things remains up in the air.
Law moves slowly. Technology, on the other hand, moves so quickly that even those with a relatively large disposable income can’t keep ahead of the curve. So, it’s not surprising the law is in a continual state of catch-up.
Rulings vary from state to state as to what requires a warrant and what does not. Currently, law enforcement can access your emails without a warrant, as long as they are less than 180-days old. (A proposed amendment would change that). In Washington State, a court ruled that text messages are like voicemail messages, in that there is no expectation of privacy and therefore they are not protected by privacy laws (no warrant needed).
While the Supreme Court decided last year that cops needed a warrant to place GPS tracking devices on vehicles, law enforcement around the country are using cell phone records to physically track people—often without a warrant.
“They can’t even agree if there’s a reasonable expectation of privacy in text messages that would trigger Fourth Amendment protection,” said Fakhoury.
Well, if cops have reason to search you does that mean they have reason to search your cell phone? That too depends on where you are. In Ohio, a court ruled that cops do need a warrant for your phone because, unlike your pockets, your phone can contain large amounts of personal data and information. But, a California court ruled otherwise, saying that cops can look through your phone all they want, as long as you had it on you at the time of arrest.
So, when do cops need a warrant? There is no clear answer. However, if they have no probable cause and ask you to consent to a search, you have the right to say no.
If you are arrested and charged with a crime, the legality of any searches and seizures could ultimately result in you getting the charges against you dropped. It is not uncommon to see drug charges and similar offenses being thrown out of court due to an illegal search.
About David Matson