Are Courts Diluting Protection From Unlawful Searches?

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Evidence comes in many forms. What you say and the objects in your possession can be used against you by law enforcement officers if your statements and property are legally obtained. But what about the information on your cell phone?

Cell phones are a one-stop shop to your whereabouts, activities, thoughts and associates. Your electronic footprint can say more about you in a glance than an hour of questioning with an attorney present.

Recent developments in the battle over whether cell phone data is private or discoverable without a warrant include the following:

  • In July 2013, the U.S. Court of Appeals for the Fifth Circuit ruled that law enforcement officers may compel cell phone service providers to turn over historical cell site location information of subscribers without a search warrant.
  • Earlier in July 2013, the Supreme Court of New Jersey ruled that law enforcement officers must have a search warrant before pursuing cell phone tracking information from a cell phone provider.
  • Montana and Maine have passed legislation to prohibit the receipt of cell phone location information by law enforcement without a warrant. Governor Jerry Brown vetoed similar legislation in California.
  • In August 2013, the Obama Administration filed a petition requesting that the Supreme Court of the United States rule on whether the Fourth Amendment allows warrantless cell phone searches.

Since the use of a cell phone is voluntary and users readily provide tracking information to cell phone service providers, the Fifth Circuit Court of Appeals ruled that consumers are aware that cell phone tracking information is not held private.

The controversy is clear. How soon the question is settled depends on the U.S. Supreme Court.