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Louisiana Fifth District Court to Rule on Smartphone Privacy

It’s a standard on television cop dramas: the investigator pulls an essential clue from the victim’s cell phone. It’s also featured on dramas where the drug dealers have to buy “burners” – disposable cell phones – to keep the cops from wiretapping them. And real life is imitating art as police gather leads and clues from crooks’ cell phones.

Unlike TV however, in the real world we have laws against unlawful search and seizure – even when that search may yield drugs or expose criminal behavior. And criminals, just like everyone else, have become firmly attached to their cell phones. When it’s a smartphone, there’s even more on offer to police – texts, emails and a list of other goodies. A modern cell phone is really just a small computer. All the functionality in a handheld package.

Of particular interest to the police is tracking the movements of criminals. Nabbing the bad guys is easier if you know where they’ve been. The question in front of the Louisiana Fifth Court of Appeals is what it takes to get the information. The prosecutors are arguing that GPS information is stored at the cell phone provider’s business and are business records, making them accessible to the police just by asking. On the other side, a lower court judge has ruled that the information is personal and accessing it without a warrant would constitute an invasion of privacy.

The issue is larger than just the Fifth US Court of Appeals. A recent New York Times article outlines how similar cell phone searches are playing out in courts all across the county and how privacy advocates are objecting to warrantless intrusions.

Courts in general are ill prepared to address the question. Modern habits, with private and public data merged in one device commonly carried, have caught them trying to apply old law to an unforeseen situation. Is your smartphone a new opportunity for police to fight crime or an extension of your privacy rights?

One thing is certain. Drug dealers have found their own opportunity with cell phones – a way to network with their customers and suppliers. They’ve already adopted the technology.

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