It's been nearly two and a half years since the Supreme Court ruled unanimously that the police need warrants to search the cell phones of people they arrest. The justices entered the digital age, you might say, by recognizing that cell phones are portals to vast amounts of personal information that people may no longer restore in their own homes. Still, the decision left many open questions. The Electronic Communications Privacy Act is stuck in the eighties, and so states are
now stepping up due to congressional gridlock. Last year, California passed its own update to the e c p A, and New Mexico will be introducing a similar bill in January. Our guest is Robert Min's, a former federal prosecutor and head of the white collar and Criminal Investigations practice at mcarter. In English, Bob, the Supreme Court's Riley decision was hailed as a victory for privacy rights in the digital age. How much did it leave out so much that so
that the states now have to step in well. The Riley decision, which was in two thousand fourteen, did represent the first time that the Supreme Court dipped its toe in the water as to how the digital age would intersect with the prior case law on search incident too arrest. And it was, really, as you said, the first time that court's acknowledged just how much information is actually stored
on people's cell phones. In fact, the court wrote that modern cell phones are not just another technological convenience, with all that that they contain, they may reveal basically the privacies of all people's lives. And so it really opened the door and said that law enforcement could not could not go in and reviewed data on somebody's cellphone without first obtaining a warrant. But that is all that it's said.
And since that time, states have been waiting for Congress to step in and pass laws consistent with that ruling. They haven't done that, and as a result, we've seen states across the country taking the lead themselves and trying to protect the privacy interests of its own citizens. So, Bob, what kind of approaches are states taking as they look at this issue. Well, there's been a whole series of
laws that have been introduced since the Riley decision. Not all impose measures limiting of the collection, sharing, or storage of data types all information that Congress has yet to step in and try to address, and it really is a whole range of issues, including, for example, rights that job applicants may have in their Facebook and and other private social media accounts. Many people, i think run into circumstances where potential employers demand that they share access to
those social media accounts when applying for a job. A number of states have stepped in and said that that's
not appropriate and that information ought to remain private. Um. There's been also a number of cases that have tried to bring into the modern age the Electronic Communications Privacy Act, which is now thirty years old and was originally created to extend protections against unconstitutional wire taps to digital communications, but that really has not addressed the modern circumstance now where people use cloud based services and under the law, believe it or not, there still is a rule that
says any email stored on a third party server, which would include for example, a Gmail or Hotmail account, if it's stored for more than it's considered abandon and subject to collection by law enforcement without a warrant. So California has already passed a law to try to update this, and there's now legislation pending in Minnesota, New Mexico, New York, Virginia, on a number of other states, all trying to bring
into the modern age this concept of protecting stored data. Bob, These third party providers Google, Facebook, Verizon, Twitter, even we saw Apple case or seemed to be in the middle between the users and the government. Do these state laws
address the problems that they may have. Well, I think they address the problems, and they probably create new ones because all of these types of providers you're talking about obviously have have customers all over the country, and what we're seeing is now a patchwork of laws that may or may not be consistent with one another that applies to customers in these various states. So if you're a Google or an Apple and you operate all over the United States, it really creates a headache for you in
terms of the privacy interests of your customers, Bob. Should there be a distinction in the way states or the federal government or we approach questions relating to say, the information you store on your phone versus the information you're putting on something like Facebook where you're sharing it with a lot of people. Well, certainly the information that is on your phone creates a more compelling case for privacy rights. I mean, these days, pe both are almost always within
five or ten feet of their smartphones. They never leave them home. They have all kinds of information on there that's a highly personal nature, and you can essentially reconstruct almost somebody's entire life based upon the information they have on their cell phone. Um, the information they post on Facebook is a little bit different because it's obviously available
to some extent to the public. But I think people who have Facebook accounts would argue that they limit those to only people who they have accepted as friends, and is certainly not the type of information that they necessarily want to share with an employer or should be forced to share with an employer. Bob, there are certain exceptions to this, and one is getting a permission from the person and sometimes the police can convince the person to
give permission, And the other is emergency exception. Explain that, sure, well, the line of cases that really comes into place here or is an exception to the fourth Amendments of Prohibition upon on reasonable searches and seizures, And it goes back to the line of cases that talk about search incident to arrest and that really deals with the concept of when police officers make an arrest of an individual, they are they have historically been permitted to conduct searches in
order to protect their own safety. So they want to make sure that an individual doesn't have a concealed weapon on them, for example, and that's been held to be entirely constitutional. And the other is to prevent the concealment or the destruction of evidence. So, for example, they can search somebody, pat them down, and if it turns out that in their pocket they're concealing some heroin or some other illegal narcotic, that can also be seized incident to arrest.
What what these cases are sort of implicated is the concept of when they take that cell phone from somebody, UM, is that something that falls into those two categories. It certainly doesn't have anything to do with the officers safety necessarily, UH and it doesn't necessarily implicate the kind supt of destruction of evidence. Although UM government prosecutors have made both of those arguments and trying to argue that searches without
a warrant are permissible. The really the only exception here that I think still exists is if there is UH an immediate threat to public safety. For example, if there is some idea that there may be some imminent harm as a result of some kind of terror attack, or if an individual was abducted and they believe that that information might be on a cell phone. Those would be exceptions that I think would still withstand a warrantless search. Bob.
We have states now experimenting with different approaches, and we'll see what they come up with. But are we better off having that happen or should the Should the Congress step in here? I think it'd be best for everybody if the Congress would step in, and I think even
the states recognize that. Um. I think what we're seeing here are states taking the lead in this, not with the expectation that not that necessary early at the end of the day, the state laws will be the law of the land for their states, but perhaps to nudge Congress to step in here to provide some uniformity in these laws.