Sean Erenstoft Lectures on the Right to Privacy in Your Cell Phone

Sean Erenstoft: Upon your return from vacation abroad, your cell phone is subject to a warrantless search by our government. Yes, not only your luggage and person can be searched, but under our present laws, so can your cell phone. Our cell phones are unlike anything our founding fathers imagined when the Fourth Amendment was being contemplated. And yet, a small device capable of carrying access to your medical records, photos, banking transactions, online purchases, and the books you read are subject to search without a warrant, probable cause, or even reasonable suspicion. That’s because (as presently imagined) Fourth Amendment rights are practically suspended at the border.

I take issue with this wholesale assault on our civil rights. Unlike most physical objects, the digital data on our phones can neither be argued to threaten the physical safety of police nor aid its owner’s escape from detention. And thus, should be subject to the rigors of articulating a warrant before cell phone data is copied (on what is called a “Gold Copy”) and reviewed and shared amongst law enforcement. Indeed, there is nothing so immediate that when balancing the state’s interests against an individual’s right to privacy, the necessity of a warrant should be ignored.

Cell phones literally enable a person to lug around vast amounts of data previously relegated to the stacks, volumes and file boxes stuffed into our home office and garages. The ability to store photo albums, novels, receipts and tax returns on a handheld device is not only possible but if you are not carrying a cell phone — you are the exception!

This is not to say that cell phones are not valuable tools in combating crime. Geo-location and other technology can be used to garner information linking a cell phone owner to a crime.

However, whereas a person’s home enjoys the traditional coverage of the minimally expansive Fourth Amendment protections, our homes contain a fraction of the data a cell phone can. The ability to hold all the data of one’s life in our hands does not make the information any less worthy of protection. That’s why police and border patrol officials should be caused to obtain a search warrant if they want to review what searches on Google you made, your inquiries on WebMD, your hobbies, your pastime, and your romantic life.

Given the efforts now underfoot to tilt the Supreme Court to the right. . . the answer to the question about whether cell phone data should be subject to the same rigors of obtaining a warrant as would be required to search the contents of our homes, should be addressed by Congress to ensure the reach of the Fourth Amendment.

Sean Erenstoft is a civil rights advocate in Los Angeles. He operates SuperiorCourtBlog and is the owner of Hard Corp. Media.

Sean Erenstoft can be reached at (310) 613-8887.