In the modern world, data privacy is a huge issue. So many parts of our everyday lives and communications now take place over the internet. Many of us are accustomed to thinking of our computers, phones, tablets, and other devices as our private property and our online activities as our own private business. However, in certain cases law enforcement can gain access to these devices, including internet search history and downloads, subject to a proper search warrant.
But does this mean you have to give over your information whenever law enforcement asks? What about your right to privacy? When are the police entitled to search your computer, and when are they not?
What are my rights?
The Fourth Amendment to the U.S. Constitution protects against “unreasonable searches and seizures,” and is the cornerstone of American privacy law. The Fourth Amendment prohibits law enforcement from searching private property or seizing it for evidence without following proper legal procedures. It also protects against unscrupulous police conduct like unlawful wiretapping and arbitrary arrests.
All this means that in the normal course of events your right to privacy is paramount. The police can’t simply turn up at your home and search your private device or confiscate it as evidence because they feel like it, or because you might become a suspect in a particular crime. In order to gain access to your personal computer, phone, tablet, etc., law enforcement will usually first need to obtain a search warrant.
What is a search warrant?
A search warrant is a tool used by law enforcement to comply with the Fourth Amendment’s prohibition on unreasonable searches and seizures. In order to obtain a search warrant from a judge, the police must prove that there is probable cause to search particular property in relation to crime.
Under certain circumstances, law enforcement can get a search warrant from a judge to obtain the right to search your computer. To do so, however, they must first follow certain procedures outline by the law before they are entitled to collect this kind of evidence.
A warrant may be issued for:
- evidence of a crime
- contraband, fruits of crime, or other items illegally possessed
- property designed for use, intended for use, or used in committing a crime
- a person to be arrested
This potentially includes electronically-stored information. A judge can issue a warrant authorizing the seizure of electronic storage media or the seizure or copying of electronically-stored information. Sometimes law enforcement will copy information from the device while executing the search warrant, then review the information or media copied at a later time (but they may do so only in a manner consistent with the constraints of the original search warrant).
Do I need an attorney?
If you have reason to believe you are or will be the subject of investigation for child pornography, communication with a minor for immoral purposes, or other web-based sex crimes, it’s never too early to hire a good lawyer. An experienced attorney can help you comply with law enforcement to the extent necessary under the law while safeguarding your rights as an individual and avoiding giving away more than is required by a warrant.
Please call us at the Marshall Defense Firm for an appointment with an attorney experienced in defending cases involving computer evidence.