Search and Seizure in the Era of Facebook and Cell Phones - Coursework Example

Search and Seizure in the Era of Facebook and Cell Phones? Do You Need A Search Warrant? If So, When? The world today can be described as being a digital world. The phrase digital world broadly implies that the world we are living in today is so dependent on digital technology that almost every aspect of life is affected. It is common knowledge that the internet and information technologies have revolutionized the world. This digital revolution is impacting all aspects of our lives including communication, education, business, financial management, and personal lives. For example, it is now possible for people to communicate in real time across the world through virtual platforms such as email and social media. Distance or physical barriers are no longer inhibitors of communication. In fact, the idea of the world being a global village is based on this technological revolution that has connected all parts of the world together. The impacts of the digital world vary. On one hand, the digital world has enhanced certain aspects of life such as virtual communication, information management, business transactions, health and education. For example, many education institutions now provide eLearning where learners do not have to attend school physically. Instead, they can use their personal computers at the comfort of their homes to interact with their teachers and complete their courses without even meeting eye-to-eye. However, the digital era has also brought about numerous challenges. The greatest challenge in this digital era involves privacy and security issues. Privacy and security are major concerns in this digital era because of the removal of physical as well as other barriers or protective elements that ensured people were safe and their privacy was protected. For example, cybercrime is now a major threat affecting billions of people across the world. The substance of this essay is the controversial issue of search and seizure in the digital age. Specifically, the essay focuses on whether it is okay or right to seize and search cell phones for whatever reason. As it will emerge in the discourse of the essay, this is a debatable issue with some arguments for and others against seizure and search of cell phones especially by the state through the police or other government agencies. The line of argument will be based on whether a search warrant is necessary to seize and search cell phones and when this is appropriate or reasonable. The main thesis of the essay is that the appropriateness of a search warrant in searching and seizing cell phones is based on prevailing circumstances. Before delving into the main arguments on the subject matter, it is important to understand the main issues involved. The debate regarding search and seizure of cell phones is based on the technology that is the cell phone. Cell phones are revolutionary technologies that have enhanced communication across the world. Cell phones are portable devices that enable people to make calls, send messages, send emails, send multimedia, and interact via social media networks. The cell phone technology is that replaces the traditional phone booths where people had to access the phone booths at specific areas to make calls. Unlike the phone booths, cell phones are portable devices that can be carried everywhere and can fit in a person’s palm, pocket, or handbag. Portability means that people can actually make calls or send messages from wherever they are without the need to go to a specific place. An advancement of the earlier cell phones is the smartphone. The smartphone is a mini computer because it can perform almost everything that a computer can. Smartphones can perform basic phone functions such as calling and sending text messages. However, these devices can also take photos, record videos, record audio messages, send and receive emails, interact via social media, and store personal information. New versions of smartphones have even more features and functionalities such as storing information on cloud memory. Yet, the smartphone is still portable. Therefore, many people find the smartphone more convenient than either the feature cell phones, which have limited functionalities, or computers, which are more expensive and less convenient because of portability. In view of the above, a cell phone or a smartphone has become more than just a device for communication. According to Friedland (2014, p. 226)1, the cell phone has become a major transformational device in this day and age just like the automobile was in the 20th century. In the debate over search and seizure in this era where cell phones are owned and used by many people, we see a tussle between technology and law. From the technological perspective, technology is changing continuously. This is evident in the emergence of smartphones that can perform almost every imaginable role including scanning documents. From the law perspective, the changes might not be so frequent or intense. A case in point is the Fourth Amendment, which is within the Bill of Rights. This law seeks to protect the privacy of US citizens by restricting unlawful searches or seizures. This law protects the right of citizens to feel secure in terms of their personal privacy, houses, effects, and papers (Hodge, 2006, p. 100)2. The provisions of this law have remained largely the same since its inclusion into the constitution of the US. It is quite evident and clear that technological changes in terms of cell phone technology are taking place at a faster rate that the changes in the law. What does this mean? To answer this challenging question, we ought to consider a specific case in the US that has attracted significant interest from different stakeholders including lawyers, policy makers, government agencies, and the general public. In June 2014, the Supreme Court of the US made a historic ruling, which will provide a point of reference for future rulings in cases where technology and the law are at crossroads. The ruling emanated from a case that occurred in 2009 where the police a man, David Riley, after a routine check in his car led to the discovery of illegal firearms. After arresting Riley, the police used his smartphone to link him to illegal drug and gang activities, which they used to charge him in California Court. The California court relied on the evidence obtained from Riley’s smartphone without a search warrant to convict the accused. However, Riley appealed against the ruling on the basis that his privacy rights under the constitution and specifically under the Fourth Amendment were violated because the police searched his phone without a search warrant. In the Supreme Court ruling in June this year, the court held the view that the Fourth Amendment actually covered the cell phone as well (Cassidy, 2014)3. The ruling of the Supreme Court clearly places the law above other considerations. The court ruling also emphasizes the fact that the cell phone is more than just a mere gadget. The cell phone has become so critical in our lives that some psychologists have actually argued that smartphone addiction is real (see Kim, 2013)4. People consider smartphones as personal and private property because they use them to store their personal information, documents, and materials. Some of these personal stuffs may not be displayed publicly because of the privacy tag that they bear. For example, people store personal information such as addresses, telephone contacts, financial transactions, photos, and messages in their smartphones/cell phones. In fact, the issue of privacy is quite a hot topic in the smartphone technology. The concerns over privacy of the confidential and sensitive information stored in smartphones affects the attitudes of many people such that some people avoid using smartphones of fear that their privacy will be compromised (Chin, Felt, Sekar & Wagner, 2012, p. 2)5. This is exactly what happened in the Riley case. The accused felt that his privacy had been violated by the police because they accessed his cell phone, which contained sensitive and confidential information about him without a search warranty as is required by law. Apart from the technology versus law controversies, there is also the boundary between the rights of a citizen and responsibility of the state. The state has the responsibility of protecting and upholding the rights of every citizen, which also includes the right to privacy. In fact, the Fourth Amendment is based on this principle. However, the question as to what constitutes a citizens privacy and where the responsibility of the state begins is ambiguous. The responsibility of the state goes beyond protecting the privacy of citizens. It also includes protecting citizens from danger or threats such as murder, theft, and oppression among others. Additionally, the state responsibility is to all citizens rather than a few. This means that the state should consider circumstances where protecting the rights of one or a few individuals undermines the rights of others. Using the David Riley case, there was clearly a dilemma in terms of the state’s responsibility to all citizens. If the police had not searched Riley’s cell phone, probably they would not have discovered his links to drugs and gangs. Individuals who engage in such activities are a threat to the society. Gang activity and drug-related activities have resulted in many deaths and violations of human rights in different parts of the world (see Kolbe& Hutson, 2006)6. What emerges here is a shocking situation where the state is torn between protecting the privacy of some citizen against the potential violations of others’. Under the utilitarian ethical theory, it would be right for the state to infringe on the privacy of a single individual to save the rights of other citizens even if this means searching and seizing cell phones. The cell phone privacy dilemma is a recent issue. Therefore, it is also important to consider the debate within the current context. Just as stated in the beginning of the essay, cell phone technologies have positive and negative impacts. One of these negative impacts is that cell phones can be used to organize and commit crime. One of the most recent crimes that are attracting global attention is terrorism. In the aftermath of the September 11 Al Qaeda attacks in the US, it emerged that terrorists were using communication technologies to plan and execute terror attacks (Ham & Atkinson, 2002, p. 1)7. This prompted the US government to come up with new anti-terrorism policies that would rely on the same technologies to prevent and arrest the terrorists. One controversial policy taken by the US government is surveillance of electronic data from cell phones, internet, credit cards, and emails among others. This surveillance is governed by several laws including the PATRIOT Act and ECPA (Electronic Communications Privacy Act) among others (Regan, 2014, p. 32)8. In the context of the threat of terror attacks, the unwarranted seizure and search of cell phones may be justified. If the government is able to prevent a major terrorist attack on a city that could have resulted in many deaths, injuries, and destruction or property by checking the messages and email conversations of terrorists, there would be limited negative criticism of the government act. From the above consideration, it is beginning to emerge that the question of whether a search warrant is needed to seize or search an individual’s cell phone is subjective. The individual whose cell phone is seized or searched without a search warrant will feel that his or her rights were violated. However, if the individual was a terrorist, the general public would not consider it as a violation of his or her privacy. Therefore, in arguing on either side of the debate, the individual biases should not be ignored. In some cases, the state’s responsibility requires a search of cell phones without a search warrant. It would be a terrible mistake for the police or other government agencies to take time seeking a search warrant when a terrorist is already in the final steps of executing a major bombing in a crowded area. Seeking the search warrant after identifying an imminent threat would jeopardize efforts to prevent the danger from happening because the criminals would have time to execute their plans before the police could actually catch them. One of the strongest arguments provided in support of cell phone seizures and searches without a search warrant is that critical evidence may be lost. It is common knowledge that a criminal will seldom help the police in finding him or her guilty. The common reaction of a criminal is to try as much as possible to conceal evidence that may be used to send him to jail. With regard to the cell phone, people can store any kind of information including information that could be used to link someone to crime. This is exactly what happened in David Riley’s case. This does not mean that Riley’s case is an exception. There have been many cases where evidence obtained from individuals’ cell phones has been used to link them to crimes such as murder. According to Summers (2003)9, cell phones have become like fingerprints in the fight against crime. This is not a secret. Almost everyone knows that they can be tracked or linked to crime based on evidence from their cell phones. In fact, many criminals tend to avoid being caught by avoiding the use of cell phones. In the event that someone is arrested for an alleged offence or crime and they know too well that the evidence to convict them is contained in the cell phones, they will attempt to destroy the evidence or encrypt it. What this means is that it is possible for crucial evidence to be lost, destroyed, or concealed by cell phone users who do not want to be convicted. This attempt to conceal crucial evidence would be more probable in a situation where the police are near the individual such as during an arrest. It would be unreasonable for the police who suspect or have reason to believe that an individual’s cell phone contains crucial information or evidence to let the person go just because they do not have a search warrant. Obviously, the individual will take the slightest chance available to destroy the information or evidence in his or her cell phone. Now that we have established the subjectivity of the debate regarding the need for search warrants for cell phone searches and seizures, it is appropriate to consider another element of the privacy law, which is reasonable expectation principle. The reasonable expectation principle refers to the expectations of a reasonable person (McArthur, 2001, p. 123)10. With regard to cell phone privacy, the reasonable expectation principle means what a reasonable person would expect in terms of his privacy in using the cell phone. Based on this principle, a reasonable person would expect that the cell phone is a private property used for private affairs. Therefore, any attempt to seize or access the information contained in a person’s cell phone would be considered as an infringement of privacy. However, the reasonable principle is also subjective because different people with sound minds can have different opinions regarding the same issue. This is clearly evident in the debate over the search of cell phones without a warrant. Some entities especially from the government side hold the view that a search warrant may not be necessary under certain circumstances. However, the public and human rights groups tend to hold a different view. In the case of David Riley, the Supreme Court and the lower courts held different opinions on the issue of searching Riley’s smart phones without a warrant. From the discussions in the essay, it is almost impossible to find a single position regarding the subject matter. There are valid reasons from both sides of the argument. From the argument supporting the need for warrants in searching cell phones, the protecting of privacy of individuals is a valid reason to support this position. On the other side, a warrant may not be necessary because of protecting the rights of other citizens for example by using digital evidence from a cell phone to arrest terrorists and dismantle their plans. It is the stand of this paper that the issue is subjective and based on prevailing circumstances. An arbitrary search on people’s cell phones without a valid reason is wrong, which makes the need for a warrant necessary. However, in high stake situations such as in dealing with a real terrorism threat, a warrant may not be necessary to seize or search a person’s cell phone. The debate on whether a warrant is necessary to seize or search a cell phone will continue. The final verdict will always depend on the prevailing circumstances and the different perspectives that will be in play. References Cassidy, J. (2014). The Supreme Court gets it right on cell-phone privacy. The New Yorker. Retrieved from http://www.newyorker.com/news/john-cassidy/the-supreme-court-gets-it-right-on-cell-phone-privacy Chin, E., Felt, A. P., Sekar, V., & Wagner, D. (2012). Measuring user confidence in smartphone security and privacy. In Proceedings of the Eighth Symposium on Usable Privacy and Security (p. 1). ACM. Friedland, S. I. (2014). Cell phone searches in a digital world: Incorporating function as well as form in fourth amendment analysis. Texas Journal on Civil Liberties & Civil Rights, 19(2), 217-250. Ham, S., & Atkinson, R. D. (2002). Using technology to detect and prevent terrorism. Progressive Policy Institute. Hodge, M. J. (2006). Fourth Amendment and Privacy Issues on the New Internet: Facebook. com and Myspace. com, The. S. Ill. ULJ, 31, 95. Kim, H. (2013). Exercise rehabilitation for smartphone addiction. Journal of Exercise Rehabilitation, 9(6), 500. Kolbe, A. R., & Hutson, R. A. (2006). Human rights abuse and other criminal violations in Port-au-Prince, Haiti: a random survey of households. The Lancet, 368(9538), 864-873. McArthur, R. L. (2001). Reasonable expectations of privacy. Ethics and Information technology, 3(2), 123-128. Regan, L. (2014). Electronic communications surveillance. Monthly Review, 66(3), 32-42. Summers, C. (2003). Mobile phones – the new fingerprints. BBC News Online. Retrieved from http://news.bbc.co.uk/2/hi/uk_news/3303637.stm Read More