Think Your Cell Phone Is Private? Think Again

Our cell phones are pretty fantastic machines. They allow us to document all of life’s moments, stay in touch with our friends and family, navigate through cities and towns, find our one true love (or one night stand), and help us discover the true meaning of life.

Recent studies show that 90% of Americans own a cell phone and 58% of us have smart phones. We carry these handy devices with us in every waking moment, we apparently suffer from cell phone anxiety, and 20% of us admit to using our phones during sex. For better or for worse, cell phones have become an integral part of our day to day life and there are an increasing number of stories where people lose their lives in an attempt to recover their phones.

Our iPhones and other devices have become an extension of our person and behind our lock screen they possess the most damning aspects of our day to day lives. Our bitchy backbiting group chats, tragically intoxicated photos that should never see the light of day and our dating profiles on our phones are things we all enjoy, but would like to keep as private as possible. Unfortunately, police have increasingly used the evidence they gather from cell phones to prosecute and persecute individuals throughout the country – and have been doing so at their own discretion. And now, the Supreme Court is currently considering whether our cell phones can be searched without a search warrant.

The Obama administration and several states defend the ability of police to search your cell phone without a warrant. Under the Fourth amendment, police are required to obtain search warrants which in turn are based upon “probable cause” or reasonable belief that a crime has been committed. The Supreme Court has long struggled with the limitations of reasonability and what privacy we can expect from searches.

Cell phones can provide police with a wealth of data that can be used against you. Our phones can track our every movement through GPS pinpoint precision, provide valuable photo evidence against you in a court of law, display private bank information and financial transactions, and can provide detailed and private conversations between individuals via text and email regardless of how secure you think your phone is. This evidence has been used in countless cases throughout the country and two cases before the Supreme Court call to question whether a warrant should have been required. A Texas Court of Appeals ruled that searching someone’s cellphone is similar to searching their “home desk, computer, bank vault, and medicine cabinet all at once.”

If you aren’t participating in criminal activity, you totally have nothing to worry about, right? Wrong.

According to the FBI, over 12 million people were arrested in 2012. More than 41 million people are issued traffic citations annually by police throughout the country, which is a staggering one in five drivers. In any of these situations, cell phones could be searched and any information or materials on our phones are no longer considered private. Should the Supreme Court rule that warrants are not required before searching someone’s cell phone, over 10% of the entire US population could be at risk of having their most intimate thoughts, emails, photos, and exchanges searched by the police.

You have a kickass password that consists of a maze of a random 4-8 digit code. You’re good, right? Unfortunately not. Your password won’t necessarily protect your phone from a search.

Regardless of whether you’re Ms. Goody Two-Shoes or a minor drug dealer peddling through your phone, cases that touch on privacy expectations and search/seizure issues are ones that we need to take notice of. As we begin to document more and more of our life and our interactions with one another, knowing what interactions can and can’t be searched by the police without a warrant is important. Jokes can be taken out of context, your exchange with a friend can be misinterpreted and extrapolated into something bigger than it is, or you could be committing a legitimate crime and detailing your activity — either way, knowing what is or is not private is important and we should care about it.

The two cases before the Court are critically important in our digital age. This case will redefine our understanding of “unreasonable searches and seizures” and how they apply to our cell phones. George Washington University College of Law Professor Orin Kerr is a noted expert in the field of police searches and notes that, “”computer search and seizure is the new frontier. These are the first cases of many that the Supreme Court will decide in the area, so they’ll be very important for the future of the law.”

Cell phones have become a permanent fixture in our lives. We eat, sleep, work, poop, and have sex with the thing never more than an arm’s length away. They contain the most intimate thoughts, expressions, and anecdotes of our lives and could very well be considered the most intrusive tool police have to investigate the lives of suspects. As the ACLU noted, “Cellphones and other portable electronic devices are, in effect, our new homes,” and our cell phones should have the same privacy expectation as our residences.