Technology and law: Cell phones, Facebook and other digital evidence

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Police are increasingly looking to cell phones and social media sites as potential sources of criminal evidence. For example: who did a suspect text and what was communicated in the text? Or, have alleged perpetrators or their accomplices shared information about a crime with their Facebook friends?

Recently, Professor Paul Marcus of William & Mary Law School moderated a discussion about digital evidence with two colleagues, Professors Jeffrey Bellin and Adam Gershowitz (see video above).  The trio explored three topics: police searches of cell phones, the “treasure trove” of information available to police on social media, and the question of whether or not the U.S. Supreme Court will weigh in on – or rein in  – the gathering and use of digital evidence.

The following transcripts have been pulled from the discussion.

Can the police legally search your phone?

Professor Gershowitz: … The Fourth Amendment allows for the police to search [your cell phone] as long as it is not an unreasonable search or seizure. It requires a warrant, but there’s a whole host of exceptions to the warrant requirement.  One of them is … [the] “Search Incident to Arrest” doctrine. Case law that’s gone back for decades suggests that we can search your wallet, or your purse, because it's a container. Courts have quickly come to the realization that a cell phone is just an electronic container and [many] courts have come to the conclusion that it’s permissible for police to search your phone -- and anything that’s on it, whether it's your email, your text messages, your internet browsing -- as part of a valid arrest.

Social Media: “Treasure Trove” of Evidence

Professor Bellin: Certainly this is a large issue that is coming to the courts as well. Police are out in front of the courts on this issue. … not just Facebook, but other social media [such as Twitter]. … Facebook is obviously a treasure trove for law enforcement because so many people are on Facebook. In addition to that, and what’s so important to recognize in this area, is that many people are communicating what they see and what they observe in real time on Facebook and these people may not necessarily be willing to cooperate with police … so I … think …of Facebook as maybe requiring a little warning along the bottom of the page that [states]: everything you post may and will be used against [you] in court, but [also may be used] against your Facebook friends as well.

Professor Gershowitz: Some Facebook pages are public in such a way that police and prosecutors … can go ahead and look at the information without ever asking the court for anything. In other cases, what you see are police and prosecutors going through the subpoena route to go gather this information, without going for a warrant. … The standard [for a subpoena] is not as difficult to achieve.

The Supreme Court and Digital Evidence: Will the Court weigh in on - - or rein in – - the gathering and use of digital evidence?

Professor Bellin [on the inherently public nature of social media]:  … people out there with 3,000 [Facebook] friends … should be aware that you might as well be transmitting your communications directly to the authorities, which may be good or bad, depending on what you are up to.

Professor Gershowitz  [on the future of digital evidence in the courts]: The Supreme Court, I think, is going to get forced into dealing with these questions just because they’re now so common and there’s such importance in whether this evidence will be suppressed. Unfortunately, the Supreme Court’s not particularly well suited to deal with these problems. …  It would be great if legislatures would step in here and take a serious interest in this. … I think the [Supreme] Court’s going to try hard. I think they are going to have to. I don’t know that I have the greatest confidence that they are going to come up with a rule that survives for very long effectively.