Boston, MA Criminal Defense Attorney, Kevin J. Mahoney, Asks: How Private is the Information on Your Cell Phone?
As a Massachusetts criminal defense attorney, I am keenly aware of the fact that law enforcement officials often test the limits of the Constitution in their search for evidence and their quest to identify, apprehend and prosecute a suspect. With regard to electronically stored evidence, however, the Constitutional lines are not always clearly drawn. Such is the case with cell phones and the evidence they may contain.
State courts across the country are struggling to answer fundamental questions related to individual privacy rights and the interests of law enforcement with regard to cell phones. The Fourth Amendment protects the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” Does this protection extend to cell phones and the information they hold? Does an individual have a reasonable expectation of privacy in his cell phone? Do the police need a warrant to search a cell phone? What is an unreasonable search and seizure in this context? So far, there is very little consensus on these issues. For example, an Ohio court ruled that the police need a warrant to search a cell phone; the California Supreme Court, however, has ruled that the police may search a cell phone without a warrant, as long as the phone is found on the person at the time of his arrest.
Later this week, the Senate will jump into the fray. On Thursday, November 29, a Senate committee will consider proposed revisions to the 1986 Electronic Communications Privacy Act. The Act establishes the rules that govern the scope of government surveillance of digital communications. Among other things, the law currently allows police to search emails that are more than 180 days old, without obtaining a warrant; a proposed revision to the law would require a warrant to search any email, regardless of when it was created. Another proposed amendment would require law enforcement to serve a warrant on the service provider or a subpoena on the individual whose personal information is sought. This could have a major impact on law enforcement. In 2011, cell phone carries responded to more than 1 million demands from law enforcement for text messages and other information about their subscribers. Often times, the police or the DEA are seeking proof of ongoing, illegal drug distribution and other drug crimes.
Contact Boston Criminal Defense Attorney, Kevin J. Mahoney
If you have questions about the legality of a search that uncovered evidence leading to your arrest, an experienced Boston criminal defense attorney can conduct an investigation and get some answers. If you would like my counsel, call (617) 492-0055 to schedule a free initial consultation.
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