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NEW YORK May 24 (Reuters Breakingviews) - BlackBerries, iPhones and other smartphones record our daily work and personal lives. But the law shielding that information is up for grabs. The Oregon Supreme Court, for example, is mulling whether cops need warrants to search data on a phone, an issue that has split U.S. judges. People and businesses can only wait for the law to catch up.
This is nothing to do with recording your conversations. This is about the information on your phone: contacts, emails, calendars and so on. The police usually need a warrant to search property. For that, they have to persuade a judge they'll probably find incriminating evidence. But if you're arrested, they can rummage warrant-free through almost anything on or near you, like a wallet. A smartphone holds vastly more data and could reveal secrets. Courts are grappling with how much privacy a phone deserves.
Some treat phones like wallets. Others have decided it is reasonable to expect more privacy for cellphone data, and they require a judge's say-so to search a handset. That's more like the typical approach to personal computers.
Keeping your phone locked with a password might help, because making you reveal it could violate your right to avoid self-incrimination. And if you're under arrest, cops may need to read you your rights before asking. But tech-savvy police can always hack into a phone if the search would be legal.
Or suppose a phone is in the kitchen when cops knock. They probably need a warrant to search the house. But a California federal court has suggested that a search of the cellphone would be invalid unless the warrant specified what the police expected to find.
Though less novel, the law is also murky when the FBI tries to track your travels. Cellphone records can reveal where calls were placed. Usually, no warrant is needed to get those records, because the service provider has no privacy interest in them. But the customer might. That's why a Philadelphia federal court recently required a warrant.
Some things are certain. At a U.S. border, customs agents can search anything. Your private-sector boss can also rifle through your cellphone, so long as he gave it to you and warned he might monitor it. Otherwise, though, the law is that it depends. For a nation that holds its BlackBerries at least as closely as its right to privacy, that's little comfort.
-- The Oregon Supreme Court heard oral arguments on May 4 in a case challenging the search of a cellphone without a warrant. The phone's owner was carrying it when he was arrested on drug charges. But he argued that the rule allowing cops to make warrantless searches incident to an arrest didn't apply, because cellphones carry vast amounts of personal data and, like computers, require a higher level of privacy protection. The court has not yet issued a ruling, but could decide the case any day.
-- In January, the California Supreme court decided that a smartphone is like a wallet and can be searched, without a warrant, incident to an arrest.
-- In December 2010, the Georgia Court of Appeals ruled that the police don't need a warrant to search the phone of a suspect they have just arrested, so long as they narrow the search to what they are reasonably looking for: text messages, for example, rather than photos.
-- In December 2009, the Ohio Supreme Court ruled invalid the warrantless search of a cellphone that a drug dealer was carrying when he was arrested. It said the owner's privacy interest in the voluminous data on the phone was strong enough to require a warrant for any search.
-- In September 2010, in a case involving the investigation of baseball and steroids, the U.S. Court of Appeals in San Francisco ruled that a warrant for the search of electronic records -- such as those in a computer, cellphone or other device -- must specify the records believed to be related to a crime so that agents do not view other data.
(The author is a Reuters Breakingviews columnist. The opinions expressed are his own.) (Editing by Richard Beales and Martin Langfield)
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