It wasn’t long ago that there were rigid barriers between the digital/virtual world and the real/tangible one. A family computer room served as a physical boundary of privacy, not only from the outside world but also within the home. Siblings could keep one another out with a closed —or God forbid — locked door (a devastating sibling power move).
The boundary between the real and digital worlds in the early 2000s was largely due to the immobility of the computer. A user was essentially tethered to a computer’s power chord. However, the advent of the laptop made it possible to detach oneself and bring what was once a more personalized experience into public view. The introduction of smart phones and social media, and the proliferation of personalized tech products in the years since have further eroded the physical boundaries that once provided some semblance of digital privacy. As people become increasingly comfortable accessing the internet in public, we must retain reasonable expectations of privacy, especially for a person’s digital fingerprint. This is particularly true when safeguarding citizens’ data from government agencies that may abuse surveillance powers. The growing intimacy between people’s lives and their devices is why law enforcement must be required to obtain a warrant before accessing cell phones, tablets, or laptops. Anything short of this standard leaves the public vulnerable to Fourth Amendment violations.
The Supreme Court and Digital Privacy
In 2014 in Riley v. California the Supreme Court acknowledged the need to protect Americans’ cell data from the government—particularly law enforcement—stating that cell phones hold “the privacies of life.”[i] The Court reasoned that, because of the vast amount of private information cell phones hold, law enforcement should be required to seek a warrant before conducting a search.
Ten years have passed since the Riley decision was rendered and law enforcement still continues to push the limits of invading citizens digital privacy with an “act now, seek forgiveness later” attitude. This brazen approach led to the unlawful and erroneous arrest of Jorge Molina[ii] where police relied on Google location data in a murder investigation. Although the data was unreliable and often showed Molina in two places simultaneously, police believed they had evidence of his data and car near the crime scene.
Despite Molina insisting he was not present, backed by Uber receipts and theater tickets proving his alibi and evidence of his stepfather’s history of violence and unauthorized use of Molina’s car, police arrested him. Molina was placed in one of America’s most dangerous jails, where he remained for six days — even after police gathered evidence of his innocence. Aside from the trauma of a wrongful arrest and murder accusation, Molina lost his job, and his reputation was tarnished.[iii]
Unfortunately, cases like Molina’s are not rare when overzealous law enforcement breaches citizens’ digital privacy. In another case in 2018, Carpenter v. U.S., the Supreme Court barred law enforcement from collecting several weeks’ worth of a user’s phone data records without a warrant.[iv] The FBI has been caught hundreds of times using and misrepresenting their use of “Stingrays,”[v]devices that trick cell phones into connecting as though to legitimate cell towers. This practice results in the collection of cell data from all nearby users. Law enforcement has accessed Google’s database of nearly 600 million users[vi] to recreate the movements of individuals throughout a day, a feature capable of providing minute-by-minute accuracy.[vii]
The Need for Evolving Privacy Protections
Clearly, there is a disconnect between how the Supreme Court and law enforcement value the privacy of Americans’ devices and data. Whereas the Court has wisely recognized tech devices as extensions of private lives, law enforcement views cell phones and private data as sterile tools that simply assist people in their daily tasks, as innocuous as a hammer or printer. This perspective belies common sense, given that most people lock their phones with passcodes, refrain from openly sharing app passwords, and rely on their devices to manage highly personal, second-by-second interactions throughout the day.
Law enforcement’s nonchalant approach to people’s digital privacy is not only recklessly inappropriate but must also be understood as an unconstitutional violation of a person’s right to privacy under the Fourth Amendment.[viii] The Fourth Amendment protects U.S. citizens from unreasonable searches and seizures of their “persons, houses, papers, and effects.” The term “effects” broadly includes property[ix] and, by extension, cell phones and their accompanying data.
While some may argue the founders could not have envisioned a world with cell phones when drafting the Fourth Amendment, historical precedent demonstrates that modern updates have been “read into” the Constitution to align with the needs of a contemporary democracy. For example, modern interpretations of “liberty” and the “pursuit of happiness” have been applied centuries after the Constitution was ratified to legalize interracial[x] and same-sex marriage.[xi]
Past supreme court caselaw indicates thatlaw enforcement must be required to obtain a warrant before accessing an individual’s cell phone data. This is a reasonable standard, given the Supreme Court’s acknowledgment of the “privacies of life” stored within cell phones, the inclusion of cell phones under the Fourth Amendment’s protections for “effects”, and the societal norm of securing personal devices with passcodes. This requirement should apply both to physical hardware, like cell phones, and digital information, like data.
Warrants to access cell data should be specific, detailed, and tailored to the alleged acts. The warrants should identify the accused individual(s), limit the scope of the search to a specific timeline, and avoid requests for excessive amounts of data. This prevents unwarranted “fishing expeditions” or “witch hunts.” For instance, if a crime occurred over multiple weeks, it would be reasonable for a warrant to cover data over the relevant timeframe. Conversely, if a warrant is issued to search for photos of a crime, it would be unreasonable for law enforcement to also examine a person’s dating profile or GPS data, such as Waze, since neither application is likely to contain the relevant photos.
Importantly, law enforcement still retains the ability to bypass warrant requirements in exigent or emergency circumstances. In situations such as ongoing crimes or imminent threats — like mass casualty terrorist events or school shootings — it may be necessary for law enforcement to act without a warrant. However, such scenarios are rare, and in immediate emergencies, searching a cell phone is unlikely to be a top priority. Therefore, any decision to bypass warrant requirements should not be taken lightly and be carefully weighed against the violation of the “privacies of life” the Supreme Court has noted.
Law enforcement may argue that such detailed requirements will make their work considerably more difficult. While this may be true, the Fourth Amendment was never designed to make government searches easy. Its purpose is to protect citizens from the disproportionate power, force, and resources wielded by the state.
The Supreme Court’s interpretation of the Fourth Amendment has evolved to acknowledge the intimate information stored on cell phones. Similarly, society now regards cell phones and their data as extensions of peoples’ digital selves, no longer confined to the physical boundaries of old computer rooms. It is past time for law enforcement’s search tactics to evolve from one of “act now and think later” to treating cell phone data with the same amount of respect accorded to the home or personal liberty. Failure to do so will result in the very abuse of powers and violation of privacy the founders sought to prevent, leaving all vulnerable to an increasingly surveillance-focused state.
[i] “Riley v. California, 573 U.S. 373 (2014),” Justia Law, accessed January 6, 2025, https://supreme.justia.com/cases/federal/us/573/373/.
[ii] “Avondale Man Sues After Google Data Leads to Wrongful Arrest for Murder | Phoenix New Times,” accessed January 6, 2025, https://www.phoenixnewtimes.com/news/google-geofence-location-data-avondale-wrongful-arrest-molina-gaeta-11426374.
[iii] “Avondale Man Sues After Google Data Leads to Wrongful Arrest for Murder | Phoenix New Times.”
[iv] Riley v. California, 573 U.S. 373 (2014)
[v] Adeline Lee Moraff Laura, “Surreal Stingray Secrecy: Uncovering the FBI’s Surveillance Tech Secrecy Agreements | ACLU,” American Civil Liberties Union (blog), December 15, 2021, https://www.aclu.org/news/privacy-technology/surreal-stingray-secrecy-uncovering-the-fbis-surveillance-tech-secrecy-agreements.
[vi] Selvaggi, Joe, “Digital Privacy Divide: Can Law Enforcement Google Where You’ve Been? | Featured Latest News,” Pioneer Institute, August 20, 2024, https://pioneerinstitute.org/featured/digital-privacy-divide-can-law-enforcement-google-where-youve-been/.
[vii] Electronic Frontier Foundation, “Cell Phone Location Tracking of CSLI: A Guide for Criminal Defense Attorneys,” n.d., https://www.defendyouthrights.org/wp-content/uploads/2017/10/Cell-Phone-Location-Tracking-or-CSLI-A-Guide-for-Criminal-Defense-Attorneys.pdf.
[viii] U.S. Constitution – Fourth Amendment | Resources | Constitution Annotated | congress.gov | Library of Congress. Accessed October 23, 2024. https://constitution.congress.gov/constitution/amendment-4/.
[ix] Brady, Maureen E. “The Lost ‘Effects’ of the Fourth Amendment: Giving Personal Property Due Protection.” The Yale Law Journal – Home. Accessed October 23, 2024. https://www.yalelawjournal.org/article/the-lost-effects-of-the-fourth-amendment.
[x] Loving v. Virginia, 388 U.S. 1 (1967)
[xi] Obergefell v. Hodges, 576 U.S. 644 (2015)