Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Dec 16, 2014

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The Supreme Court has grappled with the application of Fourth Amendment rights in a digital age. In the last two years they have especially struggled with the application of the Fourth Amendment to electronic tracking and digital data. Even though the Supremes still refuse to lay down a bright line test, one clear theme has emerged:  When an accused volunteers information to the world, the accused has waived his or her Fourth Amendment rights.

Appellate courts love the concept of waiver. The expansive growth of digital information has really challenged and strained the application of the Fourth Amendment. When a reviewing court can declare “waiver,” they conveniently avoid a difficult constitutional discussion. So the obvious question is:  When has someone waived his or her Fourth Amendment protections?

Direct and Indirect Waiver

Crime Scene ComputerWaiver can occur directly or indirectly. A direct waiver is when law enforcement approaches an accused and asks for permission to access or review digital information. This might include an officer asking to inspect a defendant’s cell phone or a detective wanting a waiver to review a suspect’s Facebook account. As long as a defendant voluntarily gives consent, they have waived any Fourth Amendment protections.  Indirect consent is when a defendant does not give law enforcement express consent to review their digital information, but instead gives third parties access to their information. For example, if an individual commits an offense and publishes details of the offense on their Facebook page for any member of the general public to see, then law enforcement has the same right to look at the information as the rest of the general public. The defendant may not have intended for the police to see the information, but by exposing the information to the general public, they waived any expectation of privacy.

When Search Warrants Are Required

The challenge, however, arises when a defendant limits the exposure of their digital information. If a defendant stores information on their Facebook page or cell phone and then limits the distribution of that content to certain third parties, when does waiver occur, if at all? Many courts treat cell phones, “the cloud,” or other data storage devices as “containers of information.” If a defendant limits access to their digital information (or digital container), then law enforcement’s access will equally be limited. In order to search a phone or obtain information that has been limited, law enforcement is required to obtain a search warrant. A basis for that search warrant, however, can be information that the third party subsequently passed on to law enforcement. Even when a person communicates information to a third party they expect to be confidential, the person still waives his Fourth Amendment protections if and when that information is passed along to law enforcement. The main idea is that once law enforcement legally learns about the content of the data, they can then use that knowledge as a basis for a search warrant to explore the stored data further.

Inadvertent Waiver and Allowable Scope of Search

Exposures can also happen inadvertently. For example, if an accused leaves their cell phone on during a traffic stop such that anyone can see the contents of a text message or picture and that information would justify a further search for evidence of a crime; many states authorize their officers to review the contents of the phone on the basis of waiver by the accused. Some jurisdictions, however, still require officers to obtain a warrant prior to exploring the contents of a cell phone. Because of this split in approaches, this is expected to be the next landmark case to be decided by the Supreme Court over the next few months. The two sub-issues still to be decided are whether officers should be required to obtain a warrant, and if a warrant is authorized, what is the permissible extent of their search. What is currently undecided is whether a search is limited to the digital content stored on the phone. Because many people now use their phones to access accounts and emails, law enforcement would argue they are permitted to utilize the phone to access the same information as the owner because the warrant provides authorization to search any and all content. Organizations like the ACLU argue that any permissible searches should be limited to the actual content stored on the phone.
  
Digital technology was meant to make lives better and more enjoyable. An increased number of people utilize their cell phones and tablets for virtually every aspect of their lives, from paying bills and planning trips, to journaling about their day. Never before have people held such a concentrated amount of information about themselves in such a centralized and accessible location. With the simultaneous expansion of digital forensic technology, it is increasingly difficult for anyone accused of a crime to escape the discovery of electronic evidence that could be used against him or her. Forensic investigation is now a mainstream technique in law enforcement. The only issue to finally be resolved is the extent of law enforcement’s ability to use new age digital forensics in the face of historic Fourth Amendment safeguards.