ACLU Asks 9th Circuit Not To Treat Abandoned Phones Like Any Other Abandoned Property

This is an interesting case with some very serious implications.

For the most part, anything discarded by a suspect fleeing from law enforcement officers can be searched or seized without a warrant. For years, this wasn't necessarily a problem. The stuff discarded ranged from bags containing substances" to wallets to the occasional backpack. The intrusion was limited and, in most cases, the evidentiary value (drug baggies, recently fired guns, etc.) was self-evident.

But in this case - one in which the ACLU has filed an amicus brief - the expectation of privacy is a bit more important. Previously, the Supreme Court rejected plenty of government arguments when it ruled that phones seized during arrests required a warrant to be searched. One of the many arguments rejected was this: that searching a phone was like searching a suspect's pockets or the trunk of their car or the luggage they carried onto a plane.

The court rejected these arguments, equating the now-prevalent cell phones with the search of a house. In fact, searching a phone could be more intrusive than searching someone's house, because someone's house rarely contains thousands of photos, multiple thousands of conversations, and access to every other part of someone's lives they've chose to connect to the internet.

In this case, the government is arguing a search of an abandoned" phone should not require a warrant. It has chosen to treat cell phones - which contain people's entire private and public lives - as something containing little more than your average wallet or backpack.

Imagine this: You lost your phone, or had it stolen. Would you be comfortable with a police officer who picked it up rummaging through the phone's contents without any authorization or oversight, thinking you had abandoned it? We'll hazard a guess: hell no, and for good reason.

Our cell phones and similar digital devices open a window into our entire lives, from messages we send in confidence to friends and family, to intimate photographs, to financial records, to comprehensive information about our movements, habits, and beliefs. Some of this information is intensely private in its own right; in combination, it can disclose virtually everything about a modern cell phone user.

If it seems like common sense that law enforcement shouldn't have unfettered access to this information whenever it finds a phone left unattended, you'll be troubled by an argument that government lawyers are advancing in a pending case before the Ninth Circuit Court of Appeals,United States v. Hunt. InHunt, the government claims it does not need a warrant to search a phone that it deems to have been abandoned by its owner because, in ditching the phone, the owner loses any reasonable expectation of privacy in all its contents.

The government will (somewhat logically) argue that anyone abandoning" property has lost any expectation of privacy. After all, any passerby could pick up the phone and attempt to recover its contents.

But there's a big difference between what a passerby can obtain and what cops (with forensic tools) can acquire. And there's an even bigger difference between what passersby can do with this information and what the government can do with it. Someone with access to the contents of the found phone can only exploit that information to engage in criminal acts. A cop, however, can just roam around looking at everything until they find something they can charge the phone's former owner with. That's a big difference. Identify fraud sucks but it's nothing compared to being hit with criminal charges.

Unfortunately, the district court considered all abandoned" property to be equal. So, as the ACLU proposes at the opening of its post, a ruling in favor of the government would remove any restraints currently curtailing government exploitation of found devices. While one would hope any phone found by cops would be used only to locate the owner of the phone, a decision that treats phones as little more than the equivalent of garbage bags set out by the curb (which are similarly considered abandoned) would invite a whole lot of opportunistic fishing expeditions by law enforcement officers with the free time and access to forensic search devices.

I won't speculate on the amount of free time officers have, but it's common knowledge most law enforcement agencies either own forensic search tools or have access to these tools via nearby agencies.

So, while this initially appears to be a discussion about suspects abandoning evidence" while being pursued by cops, the implications are far bigger than your average neighborhood drug dealer tossing baggies into a bush while climbing over a fence.

That's why the ACLU is involved. And that's why the Ninth Circuit should consider its brief [PDF] carefully. But it's not clear how this can be squared with established law. It would take another level of precedent with a very narrow finding. The problem with that is the nation's top court, that may review any decision the Ninth Circuit makes, doesn't appear to be all that interested in establishing new precedent unless it aligns with the ax-grinding proclivities of a handful of justices.

Which leads us to this unbearable realization: there are a bunch of cases out there too important to be [cough] entrusted to this particular version of the Supreme Court. All we can do at the moment is cross our fingers and hope....

Correction: An earlier version of this article said this case was at the Supreme Court, when it is currently at the Ninth Circuit. We have edited the article accordingly and regret the error.