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Your Significant Privacy Interest in Your Phone Doesn't End at Border

By Ephrat Livni, Esq. on May 18, 2016 | Last updated on March 21, 2019

Your phone now contains more information than ever before, more even than your home, and the courts recognize this. You do have a significant privacy interest in your phone and you can challenge a search of your tech just as you would a search of your car.

Two years ago, the Supreme Court acknowledged the significant role of technology in our lives in Riley v. California. A recent case out of the Eastern District of Virginia, US v. Kolsuz, illustrates this, saying specifically that search of a smartphone at a border requires reasonable suspicion, according to legal analyst Orin Kerr. Let's consider what it means for you.

Attached to our Phones

Chief Justice Roberts, writing for a unanimous court in Riley v. California, was cognizant of the role that cell phones play in contemporary life, and our significant attachment to our tech. The phone are, he said, "such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy."

In the more recent case, US v Kolsuz, the court rejected prosecutors' attempts to distinguish between two kinds of searches -- an extensive cell phone search from a very extensive one. The court found that either type of forensic search of cell phone data invades privacy and requires a warrant.

It noted that the government can reconstruct an individual's private life by putting together the data in the phone and wrote, "Thus although the forensic search of defendant's iPhone did not involve the copying of every bit of data contained on the phone's hard drive, it nonetheless implicated significant privacy interests. To suggest otherwise is like suggesting that a strip search does not implicate a significant privacy interest so long as the government does not look between the person's toes."

Search and Seizure

The courts are increasingly finding we have a significant privacy interest in our technology, and recent rulings indicate that police must treat personal items like smartphones as they would your home or person. But remember that these cases arise when someone is challenging what already happened.

This means that in reality when you are at the border, authorities may ask to search your phone and it is up to you to say no. Even if your phone is taken, you significantly improve your chances of successfully challenging the search by clearly refusing to consent to it.

Accused?

If you have been accused of a crime, don't delay. Speak to a criminal defense attorney today. Many lawyers consult for free or a minimal fee and will be happy to assess your case.

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