There is a growing trend by prosecutors and judges to limit the scope of smart phone forensic searches, and other devices containing personalized data. This is an interesting legal concept, and we are going to dig into this issue through a multi-part blog.
When law enforcement obtains a search warrant for evidence of crime, the warrant typically allows them to search anywhere within that location where the evidence item could reasonably locate. For example, if law enforcement obtains a search warrant for a smart phone possessed by someone who resides in the house and the phone and/or person is believed to be located within the house, they can search anywhere within that home.
This practice has been applied by law enforcement for more than 100 years. The scope of search for the device within the home is certainly intrusive and often delves into deeply personal areas.
Now this is where things get confusing for law enforcement. Once that phone is located and the objective of the warrant is met, the search is now concluded. The device will be seized, and the warrant process begins all over again, however this time the content of the phone is what is being investigated.
Riley V. California precluded automatic searches of the smart phone which requires a new warrant. This is one of the first cases that started to tackle the myriads of issues presented by smart phones and the 4th Amendment.
An investigator, believing that evidence of one or more crimes is contained within the phone, may expect that the item can be searched, and by practice, be allowed to search anywhere the phone was located. This was once the case, but legal minds are now trying to limit the scope of smartphone forensic search, and apply restrictions to portions of the data.
This is incongruent with the wider scope to find the phone and narrower objective within the phone. “Your home is your castle” and has a higher threshold against government intrusion than any other area, well, until now. Your own person has less protection against governmental search and seizure than your home, and now, thanks to new protocols, your cell phone has even more than your home.
Prosecutors and judges are wrangling with what 4th amendment protections apply to your smart phone today, and for the future. It is well accepted that smart phones contain substantial personal data that is almost too numerable to list. However, we are creating a new paradigm that your smart phone has more protection than your home.
Smart phones are increasingly more difficult for law enforcement to gain access to. Combined with the patchwork of restrictions being applied on a case-by-case, prosecutor-by-prosecutor, and judge-by-judge occasion, it makes the investigator and forensic technician’s jobs even more difficult.
Limiting the scope of searches of data obtained from a smart phone (portable computer) sounds good on the surface but implementing this direction. In the next segment I will discuss the technical implementation issues and then follow up with recommendations on managing this issue as best as possible.
