Judges and legislators are divided over whether and when law enforcement authorities can peer into suspects’ cellphones, the New York Times reports. A Rhode Island judge threw out cellphone evidence that led to a man's being charged with the murder of a 6-year-old boy, saying police needed a search warrant. Another court compared text messages to voice mail messages that can be overheard by anyone in a room and are therefore not protected by state privacy laws. A federal appeals court in Louisiana is weighing whether location records stored in smartphones deserve privacy protection, or whether they are “business records” that belong to the phone companies.
“The courts are all over the place,” said Hanni Fakhoury of the San Francisco-based Electronic Frontier Foundation, a civil liberties group. “They can’t even agree if there’s a reasonable expectation of privacy in text messages that would trigger Fourth Amendment protection.” On Thursday, a Senate committee considers limited changes to the Electronic Communications Privacy Act, a 1986 law regulating how the government can monitor digital communications. Courts have used it to permit warrantless surveillance of certain kinds of cellphone data. A proposed amendment would require police to obtain a warrant to search e-mail, no matter how old it was, updating a provision that allows warrantless searches of e-mails more than 180 days old. As technology races ahead of the law, courts and lawmakers are trying to figure out how to think about the often intimate data that cellphones contain, said Ohio State University law Prof. Peter Swire. Neither the 1986 statute nor the Constitution, he said, could have anticipated how much information cellphones may contain, including detailed records of people’s travels and diagrams of their friends.