The BBC reports today that the Metropolitan police in London are now going to routinely “extract” data from the phones of arrested suspects. This data will then be stored permanently by the Met police. If you’re like me, you probably had an instantly negative reaction ranging from “that’s an invasion of privacy!” to “I’m glad I live in America where the cops can’t do that!”
Ah, but wait! Are you sure that police in America can’t do that? Say you’re arrested and the police have you in lock-up. Do they need a search warrant to copy the contents of your cell phone?
Here’s the quick answer: “maybe?”
Now, I know you’re wondering, “Maybe? What does this guy mean ‘maybe’?” Well, an explanation is in order. If you’re arrested, police have the right to “search incident to arrest.” As of today (May 17, 2012), the Supreme Court has not considered the specific question of whether the police may search and/or copy an arrested person’s cell phone without first obtaining a warrant. Some lower courts have and most say that no warrant is needed. See, e.g., United States v. Finley, 477 F.3d 250, 259-260 (5th Cir. 2007).
There are a couple of jurisdictions that have ruled such warrantless cell phone searches unlawful. The best example is the State of Ohio. See State v. Smith, 124 Ohio St. 3d163, 2009-Ohio-6426, at ¶ 29. As a citizen and domiciliary of Ohio, I’m proud to see that my state has rejected the Fifth Circuit’s approach. For those interested in further reading, there are a variety of informative law review articles on the topic. Here’s a recent one: Adam M. Gershowitz, Password Protected? Can A Password Save Your Cell Phone From A Search Incident to Arrest?, 96 Iowa L. Rev. 1125 (2011). For an interesting response to Gershowitz, see Susan W. Brenner, The Fifth Amendment, Cell Phones and Search Incident: A Response to Password Protected, 96 Iowa L. Rev. Bull. 78 (2011).
Ok, ok, but what about copying my phone’s contents? Can they do that? It’s a tougher question to answer than you might think.
There aren’t all that many cases even dealing with officers searching an arrested suspect’s phone, let alone trying to copy what’s on the phone. I’ve only done a cursory search but I’ve found no cases that directly match what the London police are planning on doing. As I see it, the distinction between looking through a phone versus “extracting” its contents is one of search versus seizure. This is a debatable point but let’s come back to that in a little bit.
For now, let’s assume copying a phone’s contents would be a seizure under the Fourth Amendment. It’s fairly clear that, in most jurisdictions, the police will be allowed to look through your phone for evidence of a crime if you’ve been lawfully arrested. Thus, if they find evidence of illegal activity, they may “seize” it under the “plain view” doctrine. So far, no warrant is required. Beyond this point? I don’t see how it could be lawful for the police to copy the contents of your phone without a warrant. In other words, if an officer looked through your phone upon arrest but found nothing suggesting criminal activity then copying would be a violation of the Fourth Amendment.
Now we have to return to this pesky problem: is making a copy of your phone’s data actually a seizure? Once again, the answer is not as easy to learn as you might like. The traditional Supreme Court test asks us to consider whether an owner’s “possessory interest” has been interfered with by law enforcement. See United States v. Jacobson, 466 U.S. 109, 113 (1984). If not, we don’t have a seizure. Well, copying a phone’s contents wouldn’t prevent you from possessing the contents yourself so the logic goes that we’d have no seizure here.
However, as it turns out, courts have actually split on whether copying an electronic device’s contents is a “seizure” under the Fourth Amendment. Orin Kerr has an excellent article directly on-point, in which he suggests that “the most consistent way to apply the Fourth Amendment seizure doctrine to computer data is to hold that electronic copying ordinarily seizes it under the Fourth Amendment.” See Orin Kerr, Fourth Amendment Seizure of Computer Data, 119 Yale L. J. 700, 711 (2010). Kerr actually advances a bit more nuanced of an approach than the quote reveals; he would take into account whether copying occurs before or after viewing the original. Here, he and I disagree but I will refrain from going off on that tangent. The article also gives a robust summary of court cases on point so those seeking more information should check it out. Though most cases actually deal with copying a computer’s contents, I don’t think the computer v. smartphone distinction would change anything.
So let’s return to the opening question. Can the police copy without a warrant what’s on your phone if you’re arrested? The best answer I can give you is that they may be able to do so if they discover evidence of illegal activity on the phone. In most jurisdictions, they’ll be allowed to look through it and so any evidence of criminal activity they find would permit copying under the plain view doctrine. Otherwise, a warrant would seem necessary.
Yet a few caveats are in order. First, there is no controlling Supreme Court precedent that establishes a uniform rule across the country. The upshot: some jurisdictions may not allow the cops to even search whereas some jurisdictions may not consider copying a phone’s contents to be a seizure. Thus, what’s allowed may depend upon where you live. Second, I’m only discussing federal law here. It might well be that state constitution or law would protect an arrested person even though the federal law does not. If you actually need to know whether the police can copy your phone, you should consult a local attorney. I can’t give you legal advice; I can only tell you what the state of the law is.
Ultimately, what the Metropolitan police are about to do in London seems like an affront on privacy to me. And it feels like it’d be completely unconstitutional in America…but it’s really not clear that there’s any Fourth Amendment problem here. Of course, criminal law/procedure in the UK and US differs on some fairly big points (e.g. double jeopardy, sentencing, post-conviction, &c.). Granted, the UK does not have a written constitution enshrining individual liberties nor is there as much acceptance of the quintessentially American value of individualism. Nevertheless, it seems like the concern over the Metropolitan Police’s new policy is not limited to people on this side of the pond; the group Privacy International has condemned the practice as ‘illegal’ and “a possible breach of human rights law.” For what it’s worth, I wouldn’t be surprised if the European Court of Human Rights agrees…which will be fun to watch given the recent tensions between the UK Supreme Court and the ECHR. The policy is new but litigation can’t be far away. We will eventually know what legality of this practice is—both in the UK and hypothetically in the US. It’s just a question of when.