Academic journal article Boston College Law Review

Protecting the Privacies of Digital Life: Riley V. California, the Fourth Amendment's Particularity Requirement, and Search Protocols for Cell Phone Search Warrants

Academic journal article Boston College Law Review

Protecting the Privacies of Digital Life: Riley V. California, the Fourth Amendment's Particularity Requirement, and Search Protocols for Cell Phone Search Warrants

Article excerpt

INTRODUCTION

As of January 2014, ninety percent of American adults own a cell phone.1 In 2013, Americans used their cell phones to send 1.9 trillion text messages, talk for 2.6 trillion minutes, and view 3.2 trillion megabytes worth of data from the Internet.2 Today, the most popular types of cell phones are smartphones, handheld computers capable of storing massive amounts of information.3 Most smartphone users rely on their devices for a wide range of daily activities.4 For seventy-nine percent of smartphone users, the first thing they do when they wake up is check their phones.5

With the rising popularity of smartphones, many Americans are placing more and more sensitive and personal information on their mobile devices.6 Smartphone users can not only make phone calls, write emails, and send text messages, but they can also keep records of credit card and bank statements and input their symptoms for medical diagnoses all at the touch of their phone's screen.7 As these advanced smartphone functions become more popular, many users are increasingly concerned about privacy and security on their devices. 8 Accordingly, most smartphone users want protections to ensure that their sensitive and personal information will remain private and secure.9

Recognizing the important role that cell phones play in the lives of many Americans, in 2014, in Riley v. California, the U.S. Supreme Court held that the police could not search a cell phone incident to an arrest without first obtaining a warrant.10 A unanimous Court recognized that to allow the government unfettered access to the deeply sensitive information cell phones often contain would authorize the type of broad and intrusive searches against which the Fourth Amendment protects.11 Privacy advocates championed the decision as a reaffirmation of the Fourth Amendment's warrant requirement in the digital age.12

In the aftermath of Riley, however, lower courts have articulated different standards for the scope of cell phone search warrants.13 A few courts have re - fused to issue cell phone search warrants unless the government submitted search protocols, technical documents that explain the exact methods the police will use to limit the scope of their search.14 Other courts have discussed the potential need for search protocols, but have yet to mandate them for cell phone search warrants.15 Finally, at least one court has upheld broad warrants that allow the government to review the entire contents of cell phones, later inferring scope limitations into the warrants when challenged by defendants.16

This Note argues that judges must require detailed search protocols for cell phone search warrants in order to comply with the Fourth Amendment's particularity requirement.17 As the U.S. Supreme Court held in Riley, to allow the police unguided review of the entire contents of a cell phone when executing a search warrant would authorize the exact type of general warrants that the Fourth Amendment forbids.18 Some earlier U.S. Supreme Court cases have interpreted the particularity requirement to place no limitations on how the police execute warrants.19 In Riley, however, the Court recognized that the fundamental differences between physical and digital searches may require courts to articulate new rules and new interpretations of the Fourth Amend20 ment.

Part I of this Note discusses the principles of the Fourth Amendment's particularity requirement, how those principles have been applied to computer searches, and the U.S. Supreme Court's decision in Riley v. California.21 Part II of this Note outlines the different approaches to cell phone warrants taken by lower courts, comparing courts that have required search protocols for cell phone search warrants with those that have not.22 Part III of this Note argues that courts should recognize the fundamental differences between physical and digital searches and require search protocols for cell phone search warrants. …

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