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Supreme Court to rule on cellphone privacy

The Fourth Amendment protects Michigan citizens against unreasonable search and seizures. With the advent of new communications technology, however, it did not protect third-party access to online data. Next month, the Supreme Court will rule on a criminal defense case on how law enforcement can use the data that they obtain from smartphones and other personal electronic devices.

The Supreme Court is ruling on a case concerning numerous robberies involving the defendant over two years. Law enforcement got the cell site location information for his cell phone. The police did not seek a search warrant, but a judge signed an order under the Stored Communications Act, which requires that police show reasonable suspicion instead of probable cause.

In the 2012 case, the Supreme Court ruled that a search warrant was required before police could install a GPS tracking device on a vehicle to monitor its movements. It ruled in another case in 2014 that the First Amendment protects information stored on cellular phones because it is so personal and voluminous. Search of this information is different than a physical search or law enforcement search of business records.

The Court has several ways to decide this case. It may continue to rely on the third-party doctrine, which excludes information accessible to other parties from warrant requirements, and wait for another case to address this type of privacy issue.

Information on cell phones would receive constitutional protection because carrying the device does not mean that the use agreed to tracking of their location. Because smartphone technology is continuing to change, more information about their user's lives and recorded and kept on servers possessed by third parties. Courts are only beginning to address this. An experienced attorney can help assure that a defendant can exercise their protections against police access to this information under the most recent cases.

Source: The Crime Report, "How private is your cellphone? The next Fourth Amendment challenge?," Deanna Paul, Aug. 15, 2017

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