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Should police be able to monitor cellphone use without a warrant?

On Behalf of | Nov 26, 2012 | Criminal Defense

As smart phones have become nearly ubiquitous in Tampa and across the country, the question of how much easy access police officers should have to people’s cellphone data is coming up. Courts and state legislatures have struggled to apply the right to privacy that the Supreme Court has said flows from the Fourth, Fifth and 14th Amendments to text messages, email, voice mail and other smart phone communications.

In an attempt to create a more uniform law enforcement approach, Congress is considering an update to existing federal law. A Senate committee is scheduled to vote on an amendment to the Electronic Communications Privacy Act that would partly address the issue by requiring a search warrant to read people’s email no matter how old the emails are. The statute currently allows warrantless snooping into emails that are more than 180 days old. And legislation has been proposed to require a warrant before police can track someone’s location using his or her phone’s GPS system.

Still, that leaves Florida and other states to decide for themselves whether to require law enforcement to obtain a search warrant before accessing residents’ cellphones’ text messages, social media posts, Internet searches and so on. One judge described text messages as akin to voice mails, which can theoretically be overheard by third parties and therefore are not subject to privacy. But another judge said that text messages are the sender’s “raw, unvarnished and immediate” thoughts, and therefore worthy of a reasonable expectation of privacy.

The issue is unlikely to go away soon, as prosecutors’ aggressive desire to obtain as much of our information as possible clashes against defenders of constitutional privacy rights.

Source: The New York Times, “Courts Divided Over Searches of Cellphones,” Somini Sengupta, Nov. 25, 2012

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