By Nicole Black
BridgeTower Media Newswires
Smartphones have been around for 12 years now and during that time, they’ve become indispensable for many of us. They are small computers that we hold in the palms of our hands that provide us with access to the world. We use them to obtain information, share information, connect with friends and family, conduct work and communicate, among other things. Smartphones have become central to the lives of most Americans. They’re the first thing we look at when wake up and the last thing we look at before going to sleep.
So it’s no surprise that in recent years, law enforcement officers have often sought access to smartphones in the course of their investigations. And as a result, courts have increasingly grappled with the constitutional issues presented by these requests.
For example, the U.S. Supreme Court addressed the issue of whether law enforcement could obtain historical cellphone records last year in Carpenter v. U.S., 138 Sup. Ct. 2206 (2018). In that case, the Court determined that a warrant was required in order to access the geolocation data stored in historical cellphone records.
But when it comes to law enforcement access to real-time cellphone data, the law reminds unsettled. In People v. Gordon, 58 Misc. 3d 544 (Sup. Ct. 2017), the issue presented was whether the pen register statute applied to the use of a cell site simulator to determine a suspect’s location via geolocation data obtained from a cellphone. The Court concluded that cell site simulators were more akin to GPS devices given the invasive nature of the information collected by cell site simulators and thus “the use of a cell site simulator intrudes upon an individual’s reasonable expectation of privacy, acting as an instrument of eavesdropping and requires a separate warrant supported by probable cause rather than a mere pen register/trap and trace order such as the one obtained in this case.”
A similar conclusion was reached in Massachusetts Supreme Court opinion Commonwealth v. Almonor, No. SJC-12499 (2019), which I wrote about in April. In that case, the Court considered whether “whether police action causing an individual’s cellphone to reveal its real-time location constitutes a search in the constitutional sense” and concluded that it does in fact constitute a search when law enforcement obtains real-time location data from a cellphone provider.
Another issue that has cropped up in numerous court opinions around the country is whether law enforcement may compel an individual to provide biometric data in order to access a smartphone. I recently wrote about that issue in January when I covered a case handed down by Northern District of California Magistrate Judge Candice A. Westmore. In The Matter of the Search of a Residence In Oakland, California, Case No. 4-19-70053, the Court denied law enforcement’s request for a search warrant that required any individual present at the time of the search could be compelled to “press a finger (including a thumb) or utilize other biometric features, such as facial or iris recognition, for the purpose of unlocking the digital devices found in order to permit a search of the contents ...” on the grounds that doing so would violate the individuals’ Fifth Amendment privilege against self-incrimination.
But what about physical access, as opposed to digital access, to a smartphone? Is a warrant required for that? According to a recent New York case, the answer is “no.” In People v. Ward, 169 A.D.3d 833 (2d Dep’t 2019), the court considered whether the physical search of a defendant’s cellphone fell within search incident to arrest exception to the Fourth Amendment’s warrant requirement. The Court concluded that it did, explaining that “unlike in Riley, the subject was a physical search of the phone, in which the police opened the back of the phone and looked under the battery to obtain the phone’s serial number. As such, the intrusion on the defendant’s privacy was limited to the fact of his ownership of the phone, and did not implicate any of the aspects found to distinguish a digital search from a search of any other physical object ...”
Another day, another opinion on law enforcement access to smartphones. Since smartphone technology is unceasingly evolving and changing at a quick clip, new issues regarding access to information that is contained on, in, and is accessible via these devices will continue to arise. The various permutations of these issues will no doubt present fascinating legal decisions that will have long-lasting privacy implications.
Let’s hope that the courts will continue to stay abreast of rapid technological advancements, all the while thoughtfully balancing our fundamental privacy rights with the needs of law enforcement. This is especially important given the rapid expansion and invasiveness of technology in 2019. Now, more than ever, it’s increasingly imperative for judges to keep up with the pace of change. Freedom from governmental intrusion is the very bedrock of our democracy; to allow misunderstood technology to chip away at that foundation would contravene the very principles upon which this great country was founded.
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Nicole Black is a director at MyCase.com, a cloud-based law practice management platform. She is also of counsel to Fiandach & Fiandach in Rochester and is a GigaOM Pro analyst. She is the author of the ABA book “Cloud Computing for Lawyers,” coauthors the ABA book “Social Media for Lawyers: the Next Frontier,” and co-authors “Criminal Law in New York,” a West-Thomson treatise. She speaks regularly at conferences regarding the intersection of law and technology. She publishes three legal blogs and can be reached at niki@mycase.com.
