New technology changes way searches viewed

Are searches of computers and phones unreasonable? It depends.

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Searches by law enforcement officials today are far more complex than anyone could have imagined over 200 years ago when our Bill of Rights was adopted.

Yet, the Constitution's prohibition against unreasonable searches and seizures still applies. It is up to judges to determine whether searches of computers, cell phones and other data-storing devices are permissible and under what circumstances.

That task is a tough one as technology changes faster than the law.

For example, a U.S. Appeals Court in Philadelphia ruled last week that judges have the right to require warrants before police get cell phone records to determine a customer's likely location. Cell-phone tower records can pinpoint a user's location to within several hundred feet.

The ruling stems from a Pittsburgh drug case in which judges insisted that federal agents obtain a warrant for the data. The thinking was that tracking usage patterns could show when a customer is typically home, at work or at some other location, thus intruding on privacy.

The government appealed, arguing that the 1986 Electronics Communications Privacy Act required only "reasonable grounds" the data is relevant to a criminal investigation, not the higher probable cause standard needed for warrants.

It's a close one, but we would side with the Pittsburgh judges. Government should have to have a very good reason to track the whereabouts of citizens.

In another case, the American Civil Liberties Union has filed suit against the Department of Homeland Security in an effort to stop the searches at border crossings of laptop computers, smart phones and cameras belonging to U.S. citizens without probable cause. The ACLU contends this has occurred nearly 3,000 times since 2008.

The ACLU claims Homeland Security's policy allows agents to snoop without grounds into any electronic devices that "contain information."

"Laptops are not shoes," said Catherine Crump, one of the ACLU lawyers. "They contain expressive information. There is a difference between going through your diary and your clothing."

But Homeland Security counters that the practice has helped catch terrorists and child pornographers, and affected only one-tenth of 1 percent of travelers.

Terrorists and child pornographers should be caught and punished, but the ends never justify the means.

We would think that before border agents start going through electronic devices they would have a reasonable belief that a crime has been committed or the person is a threat. Oversight from a judge would seem to be in order.

The courts, however, are not yet clear on how far law enforcement can go.

And it's likely about the time a firm direction has been determined there will be something new to consider.

Fortunately, the Constitution and our rights aren't easily changed. That, at least, gives judges a solid foundation on which to base their decisions.

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