It’s only 55 words, but when it was written, James Madison did not post it from his smartphone to Facebook.
The Fourth Amendment to the U.S. Constitution states, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
So, where do our cellphones and social networks fit in to this?
This section of the Bill of Rights deals with the concept of illegal searches and seizures. The ages-old argument of privacy versus safety once again rears its head. But, now, in the era of rapidly advancing technology, the Fourth Amendment can run into some trouble in regards to cellphones, smartphones and social networking. It would seem our lawmakers simply can’t keep up with technology and it’s beginning to show.
Here’s a hypothetical situation: someone is pulled over by a police officer for speeding, and the officer has probable cause to search the vehicle and the driver. Who knows what the probable cause is; it’s not important right now. While searching the driver, the cop comes across a smartphone. Now the question arises: can, or should, the officer search the smartphone and any texts messages, etc.? Can the officer examine the phone and use any evidence it might reveal to prosecute our driver?
So many conditions are now made public much easier in recent years. With Facebook, Twitter, and even mobile phone conversations, anything that an individual does wihtout going out of his way to make these things private could be considered public. A conversation on a cell phone in a crowded mall or in a park is more likely to be overheard than one made at home. In times when more people make decisions they would like to keep private, technology could divulge that information, sometimes unwittingly. But if they do, should police be allowed to abuse the ignorance of the masses, or the holes in the law? But this isn’t a lecture on social networking responsibility.
Back to the proposed situation: does the officer have the legal right to search a cellphone found on a person? People may argue, “If I don’t have anything to hide, it shouldn’t matter.” This is the most popular argument for more intrusive law-enforcement practices over the years. While I believe this to an extent (if a cop searched my phone, all he would find is my friends and I exchanging our favorite “Dumb and Dumber” quotes or where we are going to watch the game this weekend), some people may want to keep information private. Even if texts or Internet history contains nothing illicit or illegal, why should they be subject to search? Don’t be a hypocrite and post that stuff you want to keep so private on Facebook for the world to see. Quick, how many of your Facebook friends have posted about smoking weed, drinking (as a minor) or driving while intoxicated? Probably too many, and these are all admissions that could be used against you, right along with harmless contact lists and random Foursquare check-ins.
In order to obtain information from someone’s email, a warrant must be issued. The same should go for smartphones and cellphones, as well. Unless the officer has a warrant for the cellphone records, he should not search the phone. It would be the same as flipping through someone’s checkbook for a speeding violation to check for money laundering.
In order to follow the Fourth Amendment, law enforcement should not search smartphones or cellphones without warrants until the law catches up with the technology. It would help if people tried not to discuss illegal things over their text messages. But those same criminals shouldn’t mean every phone-wielder is going to have his iPhone examined. Now, if you excuse me, I need to text my friends to see where I’m watching the game this weekend.
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