As technology races ahead of the legal system, courts across the United States are trying to determine whether and when law enforcement should be permitted to search suspects’ cellphones for information. The issue at hand is how lawmakers and courts should think about the often intimate data that cellphones contain, including information about friends and detailed records of location and travels. Access to location records in particular has sparked a fierce debate. While some maintain that there is an expectation of privacy when it comes to where a person has traveled, authorities argue that consumers have no privacy claim over signals transmitted from an individual cellphone to a phone company’s communications tower, which they consider “third-party data.” If you are facing criminal charges in Oklahoma, and you think your cellphone was illegally searched by authorities, consult our criminal defense lawyers at Atkins & Markoff for legal help.
WARANTLESS SEARCHES MAY VIOLATE PRIVACY LAWS
Privacy laws in Oklahoma and across the country were enacted to protect the rights of Americans, but without a clear federal statute, state courts remain divided over how to handle privacy when it comes to mobile devices. In Rhode Island, a judge threw out evidence obtained from a cellphone that led to a man being charged with the murder of a 6-year-old boy, ruling that police needed a search warrant. A court in Washington has considered the differences between a text message and a voicemail message that can be overheard by anyone in the room, and is therefore not protected by state privacy laws. In Louisiana, a federal appeals court is in the process of deciding whether location records stored in a smartphone are subject to privacy protection, or whether they should be considered “business records” belonging to the phone companies.
CHANGES TO DIGITAL COMMUNICATION LAW PROPOSED
This nationwide issue will attract attention on November 29, when a Senate committee considers limited changes to the 1986 Electronic Communications Privacy Act, which regulates how the government can monitor digital communication. A proposed amendment to the law would require police to obtain a search warrant for e-mails, regardless of how old the messages are, effectively updating a provision that currently allows warrantless searches of e-mail messages more than 180 days old. Neither the 1986 law nor the Constitution could have anticipated how much information would be contained in a cellphone, says Peter P. Swire, a law professor at Ohio State University. “It didn’t take into account what the modern cellphone has – your location, the content of communications that are easily readable, including Facebook posts, chats, texts and all that stuff,” said Swire.
CONTACT OUR CRIMINAL DEFENSE ATTORNEYS FOR HELP
Lawmakers in Oklahoma have proposed legislation that would require law enforcement to obtain a warrant before demanding location records from cellphone companies. California passed a similar bill, but it was vetoed by Governor Jerry Brown, who questioned whether it stuck “the right balance between the operational needs of law enforcement and the individual expectations of privacy.” Although different courts have differing views about how this private information should be treated, there is little disagreement about the value of cellphone data to police in Oklahoma and throughout the U.S. For instance, a Congressional inquiry indicated that, in 2011 alone, cellphone carriers responded to 1.3 million requests from law enforcement agencies for text messages and other information about their customers. If you have been charged with a crime in Oklahoma and you think private information of yours was unjustly obtained from your cellphone, contact our criminal defense attorneys at Atkins & Markoff today.