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Do the police need a warrant for your phone?

The police are investigating you and they believe you may have committed a felony. They would like to take a look at your cellphone for more information about the case.

So far, you have refused to unlock it and share that data with them, as is your right. Do they need to get a warrant to open the phone and view your personal information? This could include things like:

  • A history of all of the calls you made or received.
  • The contents of your text messages.
  • Your contacts list.
  • Information regarding where you went and when, often collected by modern smartphones through various apps.
  • The pictures and videos stored on the phone.
  • Any voicemail messages that you saved.
  • All of your emails and social media messages.

These days, phones contain an absolutely astounding amount of personal information. Is yours protected, or can they just look at it at will?

They do need a warrant. The Supreme Court has ruled on it and the decision was unanimous.

But what if they use remote technologies to gather information, perhaps even without physically taking the phone? Thanks to the California Electronic Communication Privacy Act (CalECPA), they also have to get a warrant before using "bulk collection technologies". Your digital and electronic information gets at least that much protection. This is a relatively new law that started getting enforced at the beginning of 2016.

One of the biggest impacts of the new law is that the police must tell you that they are investigating you. There is a 90-day exemption that applies in certain situations, but you typically have to get notified.

Police have said that they think the law is a bit impractical. They would rather gather evidence without informing you, but people grew concerned that that opened too many doors to what would essentially be an invasion of privacy.

Proponents, though, claim the law is really just making it so that physical possessions and digital information get the same protection.

For example, police need a warrant to come into your home, pick up a letter on your kitchen table, and read it. Except for rare exceptions, without a warrant, they'd need your permission.

However, they claim that the police didn't have to have the same permission to gather digital data before 2016. They could use cellphone information from map applications or a Google account, one expert noted, without a warrant. That could give them all sorts of personal data from people who had not consented to a search and who didn't even really know that they were being searched.

The digital revolution has changed the world in numerous ways, and this is just one example of how it has impacted law enforcement. As information technologies continue to change and evolve, new laws may be needed to address future concerns.

All of this underscores just how important it is for anyone who is being investigated or who has gotten arrested to know their legal defense options and their rights.

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