Should Cell Phones Be Subject to Search Without a Warrant?

There's no federal law dictating whether or not law enforcement must have a warrant to examine cellphone data

November 26, 2012 RSS Feed Print

There is no definitive federal law dictating whether or not cellphones are subject to search by law enforcement without a warrant, leading to conflicting court rulings across the country. Technology has surpassed current laws regarding police searches of electronic data, and there's no national consensus on how private cellphone data should truly be.

Courts have not decided whether or not cellphone data and the wealth of information they provide from voicemails, text messages, and location data should have the reasonable expectation of privacy that would allow them to be protected by the Fourth Amendment. Some say a cellphone is an object that can be searched if it is in plain view, like a bag suspected of containing drugs. Others say correspondence on a cellphone is more like an actual in-person conversation, so people can suspect that information would be private.

[Read the U.S. News Debate: Should Probable Cause Be Required for Police to Use Cell Phone Location Data?]

There is also disagreement regarding whether or not location data provided by a phone signal is private or not: Some say tracking a person's whereabouts using their cellphone signal is an invasion of privacy, while others maintain that the signal between the phone and a company's communications tower is instead third-party data that can be recorded.

Major cellphone companies receive about 1.3 million requests from law enforcement for customer data each year. The American Civil Liberties Union opposes the ability of police to obtain information from a phone company, to search a cellphone without a warrant, or to use it to track someone's whereabouts:

We believe that cell phone location data, particularly when collected over a lengthy period of time, reveals intimate facts about a person's private life. The appropriate legal standard for such private information should be a probable cause warrant, issued by a judge.

[See a collection of political cartoons on Congress.]

The Department of Justice said that requiring warrants can "cripple" investigations because it doesn't give them quick access to potentially crucial information. Yet the department said Congress should draft legislation so the entire country has the same laws of when warrants are required.

"There really is no fairness and no justice when the law applies differently to different people depending on which courthouse you're sitting in," said Deputy Assistant Attorney General Jason Weinstein, of the Department of Justice criminal division. "For that reason alone, we think Congress should clarify the legal standard."

What do you think? Should cell phones be subject to search without a warrant? Take the poll and comment below.