Warrantless Searches? There’s an App for that.
Can police search your cell phone without a warrant? A new case is in the works in San Mateo County, California to decide just that. Please see CNET for more details of the case and an interesting analysis.
This case will be important as we increasingly rely on our mobile phones, laptops and even Kindles to hold our private information. The problem seems to come down to different understandings of the structure and use of electronic storage. We see the same kind of problems in E-discovery. Judges that are not extremely familiar with modern electronics and storage try to compare these devices to traditional methods of document storage; sometimes, these comparisons do not fit correctly, which can lead to the improper outcome. A great illustration of this is seen in the Microsoft/Netscape antitrust suit. Click here for many of the details.
Clearly, new rules are going to need to be thoughtfully constructed and somewhat uniformly applied across jurisdictions. If every jurisdiction is allowed to slowly develop its own jurisprudence on the issue, it may result in very different standards all over the country. It will take a very long time before we get to a “steady-state” where every jurisdiction has come to a general understanding of the standards that need to be applied. With the speed at which technology changes, this could be detrimental to many defendants. I am guessing that the U.S. Supreme Court will eventually step into the fray and set the new guidelines; however, it may be a brand new Court before we see that happen.
What do you think?