Is it legal for the police to search my smartphone or tablet without a warrant?
Stop for a moment and think about all the personal information you carry in your pocket or purse — not inside your wallet, but on your smartphone. Your smartphone likely contains contact information for your friends, family, and colleagues, as well as personal photos and a calendar. It’s an easy way to access your email and social media accounts, which are likely connected to your phone with no password-input required.
Still, despite the smartphone being a data store your for your personal information, most people don’t protect their devices in any way. In a recent study by AVG Technologies, more than half of those surveyed said they do not use the auto-lock feature or password-protection on their phones. If you lose your phone (or even just leave it unattended), anyone who finds it can get a pretty detailed look at your life.
Things may be even worse if you get arrested, no matter the seriousness of the offense.
The laws regarding when and if the police can search your phones are still being debated, state-by-state. While the laws vary depending on jurisdiction, and those laws are still emerging, the police can generally search anything in your pockets or on your person when you’re arrested, as well as items that are within your personal control, like purses, backpacks, and briefcases, says the Electronic Frontier Foundation, a nonprofit group that works to protect digital privacy.
So, if you’re arrested, the police are usually allowed to take any digital devices you are carrying and some courts even allow the police to search the contents of your phone or tablet, according to the EFF.
If your device is locked, the police can ask for your passwords to access your information, but they cannot force you to give them that information. A judge or jury can, at a later time, says the EFF.
What about the Fourth Amendment?
The Fourth Amendment to the Bill of Rights was written to protect Americans from unreasonable search and seizure. If police want to search your home, they must first obtain a warrant from a judge.
It would be fair to assume that those same search and seizure rights would apply to your smartphone. After all, why shouldn’t your phone have the same protections as a file cabinet in your home office?
"The government has resisted attempts to extend fourth amendment protections beyond what the courts have already required," says attorney Brian Albert of legal information website THELAW.TV. "That means it’ll likely take a court ruling, and very likely a Supreme Court ruling, before the government affords your mobile devices and cloud accounts the same privacy protections that you already have."
Does this apply to my email too?
The law governing email privacy, which is called the Electronic Communications Privacy Act, was passed in 1986. Since the digital world has changed dramatically since then, the law is considered to be outdated.
In 1986, email was only stored short-term on third-party servers and was generally erased after it was download to individual computers. As a result, the Electronic Communications Privacy Act defines an email that’s stored on a server for more than 180 days as "abandoned," even though email is now stored infinitely on third-party servers by most email services, such as Gmail, Yahoo, or AOL. To get access to so-called abandoned emails, law enforcement agencies must provide a written statement that says the messages are needed for an investigation, but judges don’t always have to approve the requests. That’s easy to do.
On Nov. 29, 2012, the Senate Judiciary Committee approved a bill to update the Electronic Communications Privacy Act of 1986, reported the New York Times. But the bill is still stalled in Congress.
Will Congress ever update civil liberties laws for the tech-driven world?
There are efforts to fight back against what’s perceived as an expansive erosion of civil liberties when they are applied to new devices, like smartphones and tablets. A coalition of civil rights groups and privacy advocates launched a campaign called Vanishing Rights. You can learn more about digital privacy issues and how they affect your life at the Electronic Frontier Foundation.