Daily Archives: April 26, 2014

Next week, the U.S. Supreme Court is expected to hear arguments over whether police can search a person's cellphone without a warrant upon arrest. That will give the justices a rare opportunity to draw a bright line about what police can do in the digital age.

The court should conclude that searching smartphones should require a warrant. That is what law enforcement needs in most cases to search a home.

More than 50 percent of Americans now carry smartphones, and those phones' search histories, photos, emails, chats and contacts offer not only a window on the owner's mind, but also can document their every step and communication.

Courts have given mixed rulings how the Fourth Amendment, which protects people from unreasonable search and seizure, applies to cellphones. The right to privacy in these cases conflicts with the important public interest in police solving and preventing crimes.

The high court will have to balance these two interests in a decision that makes sense not just for smartphones, but also for tablets, laptops and the new gadgets down the road.

"Some members of the court will certainly try to consider the place mobile devices play in modern life," said Jennifer Granick, director of civil liberties at the Stanford Center for Internet and Society.

The justices' ruling will involve two cases. In 2007, Massachusetts police searching a man's rudimentary flip phone noticed a phone number that led to the suspect's home where they found drugs, cash and guns. The 1st Circuit Court of Appeals agreed that the search violated his Fourth Amendment rights. The government is appealing the decision.

In 2009, San Diego police stopped David Riley for expired registration tags. A search of his smartphone revealed images tying him to a gang shooting and other evidence. Convicted of attempted murder and serving a 15-year sentence, Riley has challenged the evidence police found on his cellphone. In a 5-2 decision, the California Supreme Court upheld the cellphone search in the case.

In taking on the Riley case, the high court said it would decide the narrow question of whether evidence admitted at Riley's trial as part of the smartphone search violated the Fourth Amendment.

Legislative attempts to clarify the rules in California have not succeeded. In 2011, state Sen. Mark Leno, D-San Francisco, proposed a bill that would have required a warrant to search cellphones. Gov. Jerry Brown vetoed it.

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Quinn: Supreme Court should clarify Fourth Amendment rights in the digital age

By Marianne Goodland

Journal-Advocate legislative reporter

A resolution to add "electronic data" to the Colorado constitution's equivalent of the Fourth Amendment to the U.S. Constitution got unanimous support this week from a Senate committee.

The Senate Judiciary Committee on Wednesday gave a 5-0 vote to Senate Concurrent Resolution 14-002, sponsored by Sen. Greg Brophy (R-Wray) and Senate President Morgan Carroll (D-Aurora). The resolution, which asks for voter approval in November, would add "electronic data" to the list of items protected from unreasonable search and seizure in Article 2, Section 7 of the Colorado constitution.

The resolution now goes to the full Senate. Two-thirds of the Senate, or 24 votes, are needed for the resolution to go on to the House.

While the committee was unanimous in its support of SCR 2, the legal community was not. Opposition came from the Colorado Attorney General, police chiefs, and the Colorado District Attorneys' Council. The Colorado County Sheriffs' Association, the Libertarian Party and the Colorado chapter of the American Civil Liberties Union (ACLU) all spoke in favor of SCR 2.

The courts are weighing this question now, said Brophy in introducing the resolution. "It's appropriate that the Legislature also weigh in." He noted that electronic data should be private, the same as if it were stored in a file cabinet in the home. But government agencies aren't treating it that way and are looking at this data without a warrant, he explained.

Papers and other effects are already protected in the state constitution, but electronic data is the modern equivalent, Carroll said. Law enforcement should interpret it that way, but they don't always do that. "There should be a reasonable expectation of privacy" for electronic data.

Carroll also noted that any data that is encrypted or password protected should be protected under the law, even when it is stored in cyberspace, or the Cloud. "I don't forego a reasonable expectation of privacy when I enter a physical public domain" such as Civic Center Park in Denver, she said. The same should apply to electronic data stored in the Cloud.

Deputy Attorney General Matthew Durkin said the resolution was unnecessary, since the state and federal constitutions already protect electronic data, even if it is not listed. Electronic data is not defined in the resolution, he said, and it could be interpreted in many different ways. Instead, citizens should rely on the judicial branch to make to make that determination, which they have done for more than 200 years.

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Protections for e-data clear Senate committee