Privacy rights are not keeping up with technology. Old rules that allow police to riffle through a suspect's wallet or briefcase after being arrested are being applied to cellphones and iPads despite their vast capacity to store sensitive personal information. Legislation sponsored by Sen. Jeff Brandes, R-St. Petersburg, would require a court order first and is a laudable effort to discourage fishing expeditions by police. But further study is needed, particularly with a pending case before the Florida Supreme Court.
Lining up in opposition to SB 846 is most of the law enforcement community including Pinellas County Sheriff Bob Gualtieri and Attorney General Pam Bondi. Gualtieri says that during the minimum four hours it takes to get a search warrant, investigations can be impeded and evidence can be remotely wiped out of a portable electronic device. He contends drug dealers and child pornographers will escape prosecution if law enforcement's hands are tied for even a short while.
But the U.S. Constitution is quite clear. Under the Fourth Amendment, the protection against unreasonable searches by government is paramount. Any inconvenience to police is secondary. Having to justify to a judge that there is a legitimate basis to search through the contents of an arrested person's cellphone or iPad reduces the likelihood that police will abuse their power. Easy access to a person's electronic contacts and movements around the Web could be used by authorities as a tool of political suppression.
The technical legal question is whether the search of portable electronic devices fits one of the established exceptions to the warrant requirement, known as a search incident to an arrest. Gualtieri argues that examining a suspect's cellphone log is conceptually no different than finding a piece of paper in the suspect's pocket with his phone contacts. It is different, though, in orders of magnitude. The amount of information that can be physically carried in paper form is tiny compared with the volume of material digitally stored. The warrant exception needs to acknowledge this fact.
Although the U.S. Supreme Court has not ruled directly on searches of portable electronic devices, it has been taking a more skeptical view of the privacy intrusions allowed by advanced technology. More than a decade ago, the high court rejected the indiscriminate use of sophisticated thermal-imaging equipment used to identify homes potentially containing hydroponic marijuana growing operations. The court found that measuring the heat emanating from a home was indeed a search and required a court order for the device's use. Last year the high court said that attaching a GPS device to a car constitutes a search and requires a warrant, even though in the past the physical surveillance of a vehicle by police was not considered a search.
The Florida Supreme Court is about to decide Smallwood vs. State, a case that asks whether it is constitutional to search a cellphone after an arrest. It is probably worth seeing where the court ends up before the Legislature weighs in. And as Gualtieri suggests, a thoughtful examination of the issue by civil libertarians and law enforcement should be conducted with an emphasis on protecting Floridians' privacy in the digital age.