Friday, November 7, 2014

Cell Phone Privacy and the Law

In 2014, the United States Supreme Court addressed the issue of whether a police officer may search a cell phone without a warrant. In Riley v. California, the Court held that police officers may not search a cell phone without a warrant, absent some extreme circumstances such as a terrorist attack or child abduction. The Court went on to describe a cell phone as a “minicomputer.”  The Court recognized a cell phone’s ability to serve as an address book, tape recorder or camera, among other functions, thus making the material stored on a cell phone of a private nature. 

The law is much clearer on law enforcement’s ability to search a cell phone, as compared to the law on whether a private individual can be civilly liable for the unauthorized search of a cell phone. Unauthorized searches of cell phones have increasingly become an issue in middle and high schools. Some students have sued their schools, alleging invasion of privacy or negligence after teachers and other school personnel have seized and searched the students’ cell phones. 

The cell phone privacy issue may also arise in the context of employment situations. An employee may potentially have a cause of action against his or her employer for the unauthorized search of a cell phone, so long as the employee had a reasonable expectation of privacy in the cell phone. Whether the employee had a reasonable expectation of privacy in an employer owned and issued cell phone, however, is questionable.

A recent decision from the United States District Court for the District of Connecticut discussed cell phone privacy in the context of a civil lawsuit. In Bakhit v. Safety Marking, Inc., the court denied the plaintiffs’ motion to inspect the cell phones of the defendants. The court discussed the Supreme Court’s decision in Riley, concluding that in the present case, the plaintiffs’ motion implicated the defendants’ privacy interests given the private material that was likely stored on the defendants’ cell phones.  

The issue of cell phone privacy, especially within the context of a civil lawsuit, is continuing to evolve. As technology becomes increasingly sophisticated, courts and lawmakers will likely need to set parameters regarding cell phone searchers, while taking into account the privacy interests of cell phone users.