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How safe from searches by law enforcement is your digital data?

You've probably got a lot of information on your phone. Indeed, with emails, photos, an online banking app and more, you may feel like your smartphone holds a reflection of your life in miniature. It's as if you're holding your life in hands.

And it isn't only that your phone, tablet or other device is packed with data. There is also a lot of digital data on you out there on the Cloud or on the servers of phone companies or other third-party service providers.

How safe is all this data from searches by law enforcement? In this post, we will sketch out some of the things going on in this evolving area of the law.

The Supreme Court and Warrantless Cellphone Searches

First of all, we should remind you of last year's important decision by the U.S. Supreme on warrantless cellphone searches. In a unanimous decision, the Court said police are generally not allowed to search a cellphone seized as part of a valid arrest, unless they get a warrant.

The Court used sweeping language in making this decision. Chief Justice John Roberts noted that cellphones have become so important to contemporary communication that a visitor from Mars might conclude they are part of the human anatomy. The Fourth Amendment's protections against unreasonable search and seizure need to apply to this brave new digital world.

Unanswered Questions on Access to Electronic Data

Many questions remain, however, about how safe from searches by law enforcement an individual's digital data really is. The Supreme Court's reasoning about cellphone searches presumably would apply to tablet and laptop computers. It could even apply to information held by phone companies and other electronic service providers.

But at present, national standards are lacking on when law enforcement must seek a warrant in order to obtain electronic data.

For email, the federal Electronic Communications Privacy Act does contain certain restrictions on law enforcement access to electronic data. But it was passed nearly 30 years ago, when relatively few people even used email, and is badly in need of an update. Though the Email Privacy Act, now pending in Congress, would provide such an update, its prospects for passage are unclear.

State Protections For Digital Information

In the absence of federal standards for digital privacy protection, state law becomes even more important.

Last week, California became the third state in the nation to pass comprehensive legislation on digital privacy. The new law generally requires law enforcement agencies to obtain a warrant in order to search digital data on cellphones or on the servers of service providers. The law is called the California Electronic Communications Privacy Act.

New York is not one of the other two states with such a law. The other two are Maine and Utah.

Your Device, Your Data, Your Situation

Of course, broad changes in the law on electronic privacy take on a new urgency when you, as an individual, are facing a criminal investigation or charges. Maybe you are up against drug charges and prosecutors are trying to use evidence from your cellphone providers to track your location. Or perhaps you are facing white-collar or other charges.

The bottom line right now is that just because data is digital doesn't mean it's easy pickings for law enforcement. The Fourth Amendment is alive and well in the digital age. Talk with an experienced criminal defense lawyer to assert your rights.

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