A privacy organization has launched a campaign to encourage state lawmakers to crack down on “consent searches” of smartphones and other electronic devices because of their threat to privacy.
The Electronic Frontier Foundation explained how a typical search takes place.
“You’re driving home. Police pull you over, allegedly for a traffic violation. After you provide your license and registration, the officer catches you off guard by asking: ‘Since you’ve got nothing to hide, you don’t mind unlocking your phone for me, do you?’ Of course, you don’t want the officer to copy or rummage through all the private information on your phone. But they’ve got a badge and a gun, and you just want to go home. If you’re like most people, you grudgingly comply.”
That “ploy,” EFF said, is used thousands of times a year to “evade the Fourth Amendment’s requirement that police obtain a warrant, based on a judge’s independent finding of probable cause of crime, before searching someone’s phone.”
The solution, EFF said, is for legislatures and courts to take action.
“In highly coercive settings, like traffic stops, police must be banned from conducting ‘consent searches’ of our phones and similar devices,” the organization said.
And there should be limits on them even in less-coercive settings.
“Police must have reasonable suspicion that crime is afoot. They must collect and publish statistics about consent searches, to deter and detect racial profiling. The scope of consent must be narrowly construed. And police must tell people they can refuse,” said EFF.
“Consent searches” have been carried out aggressively, the report said.
In Illinois, for all traffic stops in 2015-2018, 85% of white drivers and 88% of minority drivers granted “consent.”
“Why might people comply with search requests from police when they don’t want to? Many are not aware they can refuse. Many others reasonably fear the consequences of refusal, including longer detention, speeding tickets, or even further escalation, including physical violence. Further, many savvy officers use their word choice and tone to dance on the line between commands—which require objective suspicion—and requests—which don’t,” EFF said.
The report said smartphone searches sometimes cover everything on the device.
And a study found that 2,000 law enforcement agencies in all 50 states had purchased technology that does a “forensic” search.
The Supreme Court has ruled that an arrest alone does not relieve police of the duty to obtain a warrant before searching a phone.
Such “consent” searches should be barred, EFF contended, during traffic stops, sidewalk detentions, home searches, station house arrests and other encounters in which a person does not feel free to leave.
The limits need to come from courts and legislatures, EFF said.
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