Speaker 1: It's been nearly two and a half years since the
Speaker 1: Supreme Court ruled unanimously that the police need warrants to
Speaker 1: search the cell phones of people they arrest. The justices
Speaker 1: entered the digital age, you might say, by recognizing that
Speaker 1: cell phones are portals to vast amounts of personal information
Speaker 1: that people may no longer restore in their own homes. Still,
Speaker 1: the decision left many open questions. The Electronic Communications Privacy
Speaker 1: Act is stuck in the eighties, and so states are
Speaker 1: now stepping up due to congressional gridlock. Last year, California
Speaker 1: passed its own update to the e c p A,
Speaker 1: and New Mexico will be introducing a similar bill in January.
Speaker 1: Our guest is Robert Min's, a former federal prosecutor and
Speaker 1: head of the white collar and Criminal Investigations practice at mcarter.
Speaker 1: In English, Bob, the Supreme Court's Riley decision was hailed
Speaker 1: as a victory for privacy rights in the digital age.
Speaker 1: How much did it leave out so much that so
Speaker 1: that the states now have to step in well. The
Speaker 1: Riley decision, which was in two thousand fourteen, did represent
Speaker 1: the first time that the Supreme Court dipped its toe
Speaker 1: in the water as to how the digital age would
Speaker 1: intersect with the prior case law on search incident too arrest.
Speaker 1: And it was, really, as you said, the first time
Speaker 1: that court's acknowledged just how much information is actually stored
Speaker 1: on people's cell phones. In fact, the court wrote that
Speaker 1: modern cell phones are not just another technological convenience, with
Speaker 1: all that that they contain, they may reveal basically the
Speaker 1: privacies of all people's lives. And so it really opened
Speaker 1: the door and said that law enforcement could not could
Speaker 1: not go in and reviewed data on somebody's cellphone without
Speaker 1: first obtaining a warrant. But that is all that it's said.
Speaker 1: And since that time, states have been waiting for Congress
Speaker 1: to step in and pass laws consistent with that ruling.
Speaker 1: They haven't done that, and as a result, we've seen
Speaker 1: states across the country taking the lead themselves and trying
Speaker 1: to protect the privacy interests of its own citizens. So, Bob,
Speaker 1: what kind of approaches are states taking as they look
Speaker 1: at this issue. Well, there's been a whole series of
Speaker 1: laws that have been introduced since the Riley decision. Not
Speaker 1: all impose measures limiting of the collection, sharing, or storage
Speaker 1: of data types all information that Congress has yet to
Speaker 1: step in and try to address, and it really is
Speaker 1: a whole range of issues, including, for example, rights that
Speaker 1: job applicants may have in their Facebook and and other
Speaker 1: private social media accounts. Many people, i think run into
Speaker 1: circumstances where potential employers demand that they share access to
Speaker 1: those social media accounts when applying for a job. A
Speaker 1: number of states have stepped in and said that that's
Speaker 1: not appropriate and that information ought to remain private. Um.
Speaker 1: There's been also a number of cases that have tried
Speaker 1: to bring into the modern age the Electronic Communications Privacy Act,
Speaker 1: which is now thirty years old and was originally created
Speaker 1: to extend protections against unconstitutional wire taps to digital communications,
Speaker 1: but that really has not addressed the modern circumstance now
Speaker 1: where people use cloud based services and under the law,
Speaker 1: believe it or not, there still is a rule that
Speaker 1: says any email stored on a third party server, which
Speaker 1: would include for example, a Gmail or Hotmail account, if
Speaker 1: it's stored for more than it's considered abandon and subject
Speaker 1: to collection by law enforcement without a warrant. So California
Speaker 1: has already passed a law to try to update this,
Speaker 1: and there's now legislation pending in Minnesota, New Mexico, New York, Virginia,
Speaker 1: on a number of other states, all trying to bring
Speaker 1: into the modern age this concept of protecting stored data. Bob,
Speaker 1: These third party providers Google, Facebook, Verizon, Twitter, even we
Speaker 1: saw Apple case or seemed to be in the middle
Speaker 1: between the users and the government. Do these state laws
Speaker 1: address the problems that they may have. Well, I think
Speaker 1: they address the problems, and they probably create new ones
Speaker 1: because all of these types of providers you're talking about
Speaker 1: obviously have have customers all over the country, and what
Speaker 1: we're seeing is now a patchwork of laws that may
Speaker 1: or may not be consistent with one another that applies
Speaker 1: to customers in these various states. So if you're a
Speaker 1: Google or an Apple and you operate all over the
Speaker 1: United States, it really creates a headache for you in
Speaker 1: terms of the privacy interests of your customers, Bob. Should
Speaker 1: there be a distinction in the way states or the
Speaker 1: federal government or we approach questions relating to say, the
Speaker 1: information you store on your phone versus the information you're
Speaker 1: putting on something like Facebook where you're sharing it with
Speaker 1: a lot of people. Well, certainly the information that is
Speaker 1: on your phone creates a more compelling case for privacy rights.
Speaker 1: I mean, these days, pe both are almost always within
Speaker 1: five or ten feet of their smartphones. They never leave
Speaker 1: them home. They have all kinds of information on there
Speaker 1: that's a highly personal nature, and you can essentially reconstruct
Speaker 1: almost somebody's entire life based upon the information they have
Speaker 1: on their cell phone. Um, the information they post on
Speaker 1: Facebook is a little bit different because it's obviously available
Speaker 1: to some extent to the public. But I think people
Speaker 1: who have Facebook accounts would argue that they limit those
Speaker 1: to only people who they have accepted as friends, and
Speaker 1: is certainly not the type of information that they necessarily
Speaker 1: want to share with an employer or should be forced
Speaker 1: to share with an employer. Bob, there are certain exceptions
Speaker 1: to this, and one is getting a permission from the
Speaker 1: person and sometimes the police can convince the person to
Speaker 1: give permission, And the other is emergency exception. Explain that, sure, well,
Speaker 1: the line of cases that really comes into place here
Speaker 1: or is an exception to the fourth Amendments of Prohibition
Speaker 1: upon on reasonable searches and seizures, And it goes back
Speaker 1: to the line of cases that talk about search incident
Speaker 1: to arrest and that really deals with the concept of
Speaker 1: when police officers make an arrest of an individual, they
Speaker 1: are they have historically been permitted to conduct searches in
Speaker 1: order to protect their own safety. So they want to
Speaker 1: make sure that an individual doesn't have a concealed weapon
Speaker 1: on them, for example, and that's been held to be
Speaker 1: entirely constitutional. And the other is to prevent the concealment
Speaker 1: or the destruction of evidence. So, for example, they can
Speaker 1: search somebody, pat them down, and if it turns out
Speaker 1: that in their pocket they're concealing some heroin or some
Speaker 1: other illegal narcotic, that can also be seized incident to arrest.
Speaker 1: What what these cases are sort of implicated is the
Speaker 1: concept of when they take that cell phone from somebody, UM,
Speaker 1: is that something that falls into those two categories. It
Speaker 1: certainly doesn't have anything to do with the officers safety necessarily,
Speaker 1: UH and it doesn't necessarily implicate the kind supt of
Speaker 1: destruction of evidence. Although UM government prosecutors have made both
Speaker 1: of those arguments and trying to argue that searches without
Speaker 1: a warrant are permissible. The really the only exception here
Speaker 1: that I think still exists is if there is UH
Speaker 1: an immediate threat to public safety. For example, if there
Speaker 1: is some idea that there may be some imminent harm
Speaker 1: as a result of some kind of terror attack, or
Speaker 1: if an individual was abducted and they believe that that
Speaker 1: information might be on a cell phone. Those would be
Speaker 1: exceptions that I think would still withstand a warrantless search. Bob.
Speaker 1: We have states now experimenting with different approaches, and we'll
Speaker 1: see what they come up with. But are we better
Speaker 1: off having that happen or should the Should the Congress
Speaker 1: step in here? I think it'd be best for everybody
Speaker 1: if the Congress would step in, and I think even
Speaker 1: the states recognize that. Um. I think what we're seeing
Speaker 1: here are states taking the lead in this, not with
Speaker 1: the expectation that not that necessary early at the end
Speaker 1: of the day, the state laws will be the law
Speaker 1: of the land for their states, but perhaps to nudge
Speaker 1: Congress to step in here to provide some uniformity in
Speaker 1: these laws.