US vs. Florez-Lopez (2/3)

 The subjectivity prong of Katz is not so clear cut when it comes to historical cell phone data seized from the defendant. For example, in Commonwealth v. Pitt, a  Massachusetts Superior Court judge recently ruled that  historical cell site location data is the kind of information society is ready to adopt  as being private, and therefore, protected from unlawful encroachment under the Fourth Amendment (13). In other words, individuals do not  expect their whereabouts to be logged simply based on the phone calls they make.

 According to  Flores-Lopez, a  cell phone user arguably does not have a privacy interest requiring Fourth Amendment protection in the cell phone numbers on records of text message exchanges. In other words, has Flores- Lopez raised the  issue of “virtual curtilage” associated with a cell phone?

 Due to the various models of cell phones on the market, it is unrealistic that the  government  will be  able  to search only for the number assigned to it without risking a privacy violation. Moreover, since the Fourth Amendment protects people and not property, it is an extremely precarious proposition to permit the government to open one’s cell phone  and  risk searching content  that would violate a defendant’s legal and/or statutory right to privacy concerning the ESI either stored on a cell phone itself or in the “cloud” (i.e., email, contacts, calendars, etc.) (14) For example, if an iPhone user subscribes to Apple’s “iCloud,” many data files are stored both  in the “cloud” as well as on the iPhone itself. When an iPhone user adds a contact or calendar event via Apple’s website (www.icloud.com), the cloud-based service automatically synchronizes the iPhone and vice-versa with the iCloud website. To log into iCloud online, one must provide a user name and password. Therefore, ESI stored in iCloud is arguably protected by the Stored Communications  Act, and therefore, so would the same information on the mobile device itself on which the telephone  number  resides. Notably, such data would only be accessible by the government with a warrant under applicable federal wiretap statutes. (15)

 Certainly, the subject cell phone in each case will not always be an iPhone. Nevertheless, how can the court safely make the distinction  as to what stored content is protected under the Electronic Communications   Privacy Act (ECPA) and related wiretap laws, and what information  stored on  the phone  is merely “trivial”? The distinction that needs to be made is that the task may be ministerial, but matching a key to a mailbox does not run the risk of violating the ECPA. The risk of intrusion is too substantial.

 One cannot analogize all cell phones to a traditional bounded paper diary or a mailbox associated with an apartment. The procedural prerequisites the government  must  satisfy to access ESI under ECPA are much greater — where judicial process is mandated  by statute — than accessing narcotics  hidden  in  between pages of a book, which may be minimally intrusive or permissible pursuant to a well-founded  legal  exception  to  the Fourth Amendment.

 In addition to holding that searching for a cell phone number  on the device itself is “trivial,” the Seventh Circuit also accepted the prosecution’s argument that mobile phones are simply “container(s)” of information subject to search without reason  specific to  the  container  itself. Therefore, relying on the U.S. Supreme Court case of United States v. Robinson, a cell phone  may be searched for certain content such as the number assigned to it without justification specific to the mobile phone (“container”)  itself (16).  The Seventh Circuit analogized a cell phone containing electronically stored information to a defendant’s diary, which could also contain data on the pages of the hard copy book. According to the court, both a cell phone  and  diary contain  information, and therefore both can be opened and searched for identifiable information without a warrant. Flores-Lopez points to various examples of wiping software and other remote manipulation tools to justify the presence of exigent circumstances to search for a telephone number on a cell phone.

 The discussion in Flores-Lopez as to “exigency” and “triviality” neglects to balance the risk of violating a defendant’s statutory  privacy rights.  However, the court acknowledges there is  an  unresolved issue concerning what should be the tolerable breadth of warrantless cell phone  searches. Since legally protected ESI is inextricably tied into the cell phone itself, one cannot practically analogize a cell phone to the lock and key in Concepcion or the container in Robinson.

 A few questions come to mind. What if the recent calls directory on the cell phone contains the user’s telephone number on the screen of the telephone, but a text message from the suspect’s physician or attorney pops up when the search is being conducted? What if the number searched is virtual and used for incoming calls (e.g., Google Voice) requiring  an online password for access? What if the phone opened by the governmental official was seconds from entering a self-lock mode? What about GPS data and the fact that the government is required to have a warrant before accessing it? Nearly all cell phones double as GPS devices, so what makes accessing them trivial? (17)

 It may be impractical to require that law enforcement officials carry around mobile forensics hardware. Exigency is fact-based, however, and it should not be assumed that a suspect has arranged for a remote wipe of his cell phone. There is a serious  collision  between  wiretap  law and the Fourth  Amendment  that remains unresolved. The situation is further complicated  by Flores-Lopez.  The major distinction  between accessing an electronic device versus a physical object such as a plastic container is that the risk of  intrusion  into  statutorily  protected data  is extraordinarily  greater  when  a device is involved, whereas one can reasonably determine where hard copy evidence physically resides.

 Preserving cell phone content forensically in order to apply for a warrant to search the phone may not be ideal for the government; however, it  is  the  most rational and constitutionally sound mechanism to protect society’s expectation  of  cell phone  privacy. There are portable digital forensics tools available that are not unduly burdensome for law enforcement to use. Requiring law enforcement officers to use these forensics tools is a smaller price to pay than compromising a suspect’s constitutional right to privacy.18 If a defendant chooses to arrange for a remote wipe of a cell phone upon being arrested, then the forensic image will yield evidence of consciousness of guilt. There are less intrusive and more constitutionally  sound mechanisms to ensure justice is served.

Flores-Lopez has paved the way for numerous legal arguments  concerning cell phone evidence and its related ESI. There are many different kinds of cell phones  containing  a multitude  of features and applications with varying levels of privacy settings. Arguably, cell phones are more like the  telephone  booth  in Katz, except the phone booth now resides inside the  telephone. (19).  Unlike a paper bound diary with contraband stored inside of it, a cell phone is vulnerable to manipulation, spoliation of evidence, and doubling as the government’s gateway to ESI protected by the Fourth Amendment and by state and federal statutes.

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