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Search warrants are rarely needed to access electronic data

Police officers in Texas and around the country generally must obtain warrants if they wish to search the residences or automobiles of suspects, and judges only issue these warrants if they are satisfied that there is probable cause to believe evidence of criminal activity will be discovered. However, the Fourth Amendment protections that guarantee the right of individuals to be secure in their persons, homes, papers and effects do not seem to currently apply to digital information.

Only Washington, Utah and California have passed laws requiring law enforcement to obtain search warrants to access confidential digital information. In the vast majority of cases, law enforcement need only present technology companies with a subpoena to gain access to this data. This worries civil rights groups because police do not have to show probable cause to obtain a subpoena. The ride-sharing company Uber was presented with more than 1,400 requests for information by police departments and federal agencies in 2017. A search warrant only accompanied 231 of these requests. The company says that it handed over data on 3,000 of its customers and drivers anyway.

Technology companies may be so willing to cooperate with law enforcement because they know the consequences of defending constitutional rights can be severe when a suspected criminal is involved. In 2016, Apple Inc. was dragged by the press and the public alike for refusing to help the FBI unlock a cellphone used by one of the San Bernardino mass shooters. A worrying number of technology companies do not even ask for a subpoena before handing over confidential information to the authorities. Snapchat says that it will turn over any data it believes is needed to comply with a legal process.

It sometimes takes lawmakers and the courts time to adjust to societal changes, and it is likely that digital information will one day enjoy the same protection as personal belongings do today. Until that day arrives, experienced criminal defense attorneys may urge their clients to use technology judiciously and avoid exchanging sensitive information electronically.

Source: Time, "Inside Apple CEO Tim Cook's Fight With the FBI", Lev Grossman, March 17, 2016

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