A new report from upturn.org reveals that thousands of smartphones are searched by police every day across the US. Unfortunately, most searches are done without a warrant and in violation of the Fourth Amendment’s guarantee against unreasonable searches and seizures.

THE PROBLEM

Law enforcement agencies across the country search thousands of cellphones, typically incident to arrest. To search phones, law enforcement agencies use mobile device forensic tools (MDFTs). This powerful technology allows police to extract a full copy of data from a cellphone. This data includes all emails, texts, photos, location, app data, and more. The report documents more than 2,000 agencies that have purchased these tools, in all 50 states and the District of Columbia.

“We found that state and local law enforcement agencies have performed hundreds of thousands of cellphone extractions since 2015, often without a warrant. To our knowledge, this is the first time that such records have been widely disclosed.” ~Upturn.org

According to the report, every American is at risk of having their phone forensically searched by law enforcement. Police use these tools to investigate assault, prostitution, vandalism, theft, drug-related offenses, etc. Given how routine these searches are today, it’s more than likely that these technologies disparately affect and are used against communities of color.

The emergence of these tools represents a dangerous expansion in law enforcement’s investigatory powers. In 2011, only 35% of Americans owned a smartphone. Today, it’s at least 81% of Americans. Moreover, many Americans — especially people of color and people with lower incomes — rely solely on their cellphones to connect to the internet. For law enforcement, mobile phones remain the most frequently used and most important digital source for investigation.

THE SOLUTIONS

Upurn.org believes that MDFTs are simply too powerful in the hands of law enforcement and should not be used. But recognizing that MDFTs are already in widespread use across the country, they offer a set of preliminary recommendations that, in the short-term, help reduce the use of MDFTs. These include:

• banning the use of consent searches of mobile devices,
• abolishing the plain view exception for digital searches,
• requiring easy-to-understand audit logs,
• enacting robust data deletion and sealing requirements, and
• requiring clear public logging of law enforcement use.

Of course, these recommendations are only the first steps in a broader effort to minimize the scope of policing, and to confront and reckon with the role of police in the United States.

“This report seeks to not only better inform the public regarding law enforcement access to mobile phone data, but also to recenter the conversation on how law enforcement’s use of these tools entrenches police power and exacerbates racial inequities in policing. ” ~Upturn.org

Special thanks to authors Logan Koepke, Emma Weil, Urmila Janardan, Tinuola Dada and Harlan Yu for providing this highly informative and educational material.

Please review my Search & Seizure Legal Guide and contact my office if you are charged with a crime involving a smartphone search. Hiring an effective and competent defense attorney is the first and best step toward justice.