Understanding the FBI’s Attempt to Be Able to Search Anyone’s Cell Phone, Part 1

As mobile digital technology becomes a constant feature of our lives, we place a great deal of trust—both as citizens and as consumers—in the companies that manufacture and maintain our mobile devices. Mobile phones, particularly smartphones, host massive amounts of personal information, which could be vulnerable to hackers without robust security measures. Maintaining the privacy of this information against warrantless intrusions by law enforcement is also critically important. Many smartphones use encryption to protect their data, and the security they provide is supposedly strong enough that even the manufacturers cannot obtain access without the phone owner’s permission. This led to a controversy in early 2016, when a federal court ordered Apple, creator of the iPhone, to help the FBI beat its encryption system on one particular device. In the Matter of the Search of an Apple iPhone, No. 5:15-mj-00451, order (C.D. Cal., Feb. 16, 2016). The company fought back, but this is not likely to be the last time law enforcement seeks access to private, encrypted devices.

The court decisions that interpret the extent of Fourth Amendment protections in our legal system have barely begun to register the existence of mobile phones and other digital technology. The first Supreme Court cases addressing Fourth Amendment rights and cell phones only appeared within the last few years. The court first addressed whether police may access the contents of a mobile phone without a search warrant, incident to an arrest, in Riley v. California, 573 U.S. ___ (2014). It found that a warrantless search under these circumstances violates the Fourth Amendment.

Recent cases dealing with the Fourth Amendment and mobile devices have identified at least two different ways law enforcement might attempt to use cell phones in an investigation. Riley dealt with a search of the contents of a cell phone without the owner’s consent or a search warrant. In other cases, police use signals sent out by a cell phone to nearby towers in order to estimate a person’s location at a given time, based on records maintained by cell service providers.

Some courts have held that accessing cell company records without a warrant does not violate the phone user’s Fourth Amendment rights. See, e.g., United States v. Graham, No. 12-4659, slip op. (4th Cir., May 31, 2016). The Supreme Court has not ruled on this question, but at least one case suggests that it might find that a warrant is required. It ruled in United States v. Jones, 565 U.S. ___ (2012), that placing a GPS tracking device on a suspect’s vehicle is a search requiring a warrant

The dispute involving Apple arose from a December 2015 incident in San Bernardino, California, when two people opened fire on an office holiday party, killing 14 people and wounding 22 more. The two shooters were killed in a shootout with police several hours later, and the subsequent investigation found alleged connections to terrorist organizations. Police recovered an iPhone belonging to one of the shooters, but they found that a four-digit password was required to “unlock” it to view its contents. The phone’s security system would only allow 10 unsuccessful login attempts before erasing all of its data. The FBI went to court, seeking an order compelling Apple to help it break through the encryption.

These blog posts are meant to be illustrative only. Unless expressly stated to the contrary herein, these matters are not the result of any legal work of Michael J. Brown, but are used to communicate a particular point of view. Michael J. Brown does not claim credit for any legal work done by any lawyer or law firm either generally or specifically, with respect to the matters contained in this blog.

For more than 20 years, criminal defense lawyer Michael J. Brown has fought against criminal charges on behalf of defendants charged in west Texas state and federal courts. Contact us today online or at (432) 687-5157 to schedule a confidential consultation with an experienced and skilled advocate for criminal justice.

More Blog Posts:

Court Rules that State May Compel Fingerprint, but Not Passcode, Access to Cell Phone, Texas Criminal Lawyer Blog, January 8, 2015

Cyber Crime Investigations Often Assisted by Incorrect Use of Anonymizing Technology, Texas Criminal Lawyer Blog, June 11, 2014

Court Rulings Affirm Fourth Amendment Rights Against Warrantless Cell Phone Searches, Texas Criminal Lawyer Blog, May 14, 2014


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