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Courts, Senate wrestle with law surrounding cell phone searches

In past years, judges, attorneys, constitutional law experts and telecommunications companies have argued over the privacy rights and implications of information stored on cell phones and how, or if, that information can be used in criminal proceedings. The Fourth Amendment protects all Americans against unreasonable, warrantless search and seizure. But is your cell phone entitled to that same protection?

"The courts are all over the place," an attorney with the Electronic Frontier Foundation told the New York Times. Across the country, judges have thrown out cell phone evidence obtained without a search warrant, compared it to voice mail messages and struggled with how to treat this information under the Fourth Amendment.

Adding to the confusion is the notion that cell phone data actually constitutes "business records" that belong to the telecommunications company, not the individual using the phone. A federal appeals court is currently considering that issue and how it could affect privacy expectations for mobile phone users.

The Senate is considering a proposed amendment to the 1986 Electronic Communications Privacy Act to address some of these issues. The amendment would require police to always obtain a warrant to search a person's email. Currently they are allowed to search email older than 180 days without one.

Some states have taken matters into their own hands, passing laws that bar law enforcement officials from demanding location records from cell phone carriers without a warrant. Similar federal legislation has been proposed by Congress.

If you are facing criminal charges or accusations, it is wise to speak with an experienced criminal defense attorney as soon as possible. They can help you protect your constitutional rights in the justice system and work toward the best possible outcome in your case.

Source: New York Times, "Courts divided over searches of cellphones," Somini Sengupta, Nov. 26, 2012

To learn more about criminal rights in Missouri, please visit our website.

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