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“Papers and effects” in a digital age, pt II

By Mark Lanterman & Judge James Rosenbaum

Modern information technologies are testing the United States Constitution’s protection against government intrusion. In our article “‘Papers and effects’ in a digital age,” published here in January 2019, we looked at the impact of smartphones and the challenges they pose for search warrants and government investigators. We concluded that as our technological landscape rapidly expands and evolves, so too do courts need to adjust to maintain the degree of privacy afforded by the 4th Amendment. 

Our digital age has forced courts to reevaluate the balance between privacy concerns and the government’s legitimate interests when digital devices are seized during investigations. Just as the founders sought to bar Britain’s writs of assistance and the Crown’s ability to indiscriminately search private homes or offices, we again face the need to establish acceptable boundaries for warrant-authorized searches. Modern digital telephones and electronic devices regularly contain vast amounts of their owners’ personal information. This new reality means that government investigators must have carefully defined limits when they seek to review these items or locate electronically stored evidence. Courts are responding to these concerns.

Case in point: Riley v. California

In 2014, the United States Supreme Court considered the case Riley v. California (573 U.S. __ (2014)). Mr. Riley had been arrested for a traffic violation. His cellphone was seized incident to the arrest. Police officers, without a warrant, examined information stored on the phone; they discovered photos and videos that suggested gang involvement. This stored information led to Riley’s being charged in connection with a shooting that occurred weeks earlier. He challenged the digital search, raising the question of what investigators are allowed to search on digital evidence. The lower courts found that the digital search incident to Riley’s arrest allowed the evidence.

The Supreme Court reversed. It recognized that, historically, officers were permitted to examine objects seized incident to a lawful arrest. But in 2014, the Supreme Court held that a modern digital phone was not just another object; its ability to store vast amounts of data called for a deeper consideration of the effect of its seizure. In today’s technological landscape, the average person stores a huge amount of data about their daily lives. This reality is unprecedented; even in the rare event that an officer found a personal diary on a person incident to an arrest, that diary would contain a limited amount of information. The Court set aside issues of officer safety or evidence destruction, neither of which was materially implicated in the seizure of a cellphone. Instead the Court found that, in considering digital devices, “a search of digital information on a cellphone… implicates substantially greater individual privacy interests than a brief physical search[.]”

The Court further held that the threat of evidence destruction, either by remote wiping or encryption, was not substantial enough to merit a warrantless search. Many investigators argue that warrants hold up investigations, making it difficult if not impossible to properly examine digital evidence. However, investigators can take immediate action to secure digital devices for future analysis, including turning off the devices and using Faraday bags, which help to protect against the threat of remote tampering.

A unique information source

Even the most basic smartphone has significant storage capacity and often holds information spanning the course of several years. Cloud computing and the existence of data stored on remote servers that can be easily accessed via smartphones further complicates the search process, since the accessible data technically extends beyond the physical confines of the phone itself.

In spite of these issues, the Court emphasized that “the Court’s holding is not that the information on a cellphone is immune from search; it is that a warrant is generally required before a search[.]” The nature of our digital world justifies the need for warrant specificity. 

The law is properly recognizing that our digital world requires a new level of warrant specificity. For the majority of Americans, these devices contain private details about almost every, if not every, aspect of our lives. The fact that technology now enables an individual to carry such information in his hand does not make the information any less worthy of the protection for which the founders fought. Our answer to the question of what police must do before searching a cellphone seized incident to an arrest is accordingly simple—specify what you are searching for and get a warrant. 

The Supreme Court’s emphasis on the need for a warrant should not unduly impede the competent investigator. Any issues posed by needing to wait to obtain a warrant can be readily mitigated. Indeed, the same kinds of electronic access can be used to obtain warrants electronically. Many states and federal procedures provide for electronic warrant application and authorization. This is an area where the law is fast developing, as the courts apply timeless principles to evolving situations. As illustrated by the Riley case, digital devices have vastly expanded the scope of information which may be available in seized objects. The law is beginning to consider these new factors. 

MARK LANTERMAN is CTO of Computer Forensic Services. A former member of the U.S. Secret Service Electronic Crimes Taskforce, Mark has 28 years of security/forensic experience and has testified in over 2,000 matters. He is a member of the MN Lawyers Professional Responsibility Board.