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Univ. of San Diego School of Law

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Friday, October 31, 2008

When the Police Go Through Your Email: Quirk of Search Law Sets Off Alarm Bells

When you look at your BlackBerry, you see a gadget full of important email, contacts and other files. Increasingly, authorities see admissible evidence.

In a small but growing number of cases, customs officials and police officers have been carrying out warrantless searches of the contents of laptops, mobile phones and other wireless devices. This spring, the 9th Circuit U.S. Court of Appeals in California ruled that "reasonable suspicion is not needed for customs officials to search a laptop or other personal electronic storage devices at the border," including international airports.

And in a handful of instances, courts have supported local police interpretations of legal searches to include browsing through phone call lists and text messages on cellphones when they arrest suspects.

Adam Gershowitz, a professor at the South Texas College of Law, argues law enforcement officials are flirting with a dangerous invasion of privacy under the "search incident to arrest" doctrine, which allows officers to search "containers" on the person of or within the reach of suspects without probable cause.

The doctrine is designed to protect police from a suspect who could reach for a hidden weapon and to prevent suspects from concealing or destroying evidence. Mr. Gershowitz argues that iPhones and other "smart" devices are, in the eyes of the law, now nothing but containers subject to warrantless search.

He and other privacy-rights defenders are calling for a law to make electronic technology different from ordinary containers that can be seized and scrutinized in warrantless searches. They note that warrants are by design a form of checks and balances, protecting suspects from unreasonable searches by requiring the approval of a magistrate, a detached third party. [Mark Godsey]

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