Is Treasure Trove of Cellphone Evidence Being Illegally Obtained

Privacy is a right that any United States citizen has, certainly including those that reside in New Jersey. This right to privacy is not absolute, which is why police have the authority to enter a resident’s home or tap an individual’s home line. Search warrants are a way to protect the right to privacy from overzealous investigators.

While listening in on an individual’s home phone requires a warrant, cellphones have created new confusion. These little mobile devices are most often found on a person and include not only recorded voice messages, but entire text conversations, photos and even videos. Courts across the country are divided on how evidence on these devices should be accessed: with a warrant or without?

The Electronic Communications Privacy Act is federal legislation that was enacted in 1986 and covers this exact issue. The legislation was intended to regulate governmental monitoring of digital communication. Many courts have cited this legislation as justification to allow warrantless surveillance of cellphone data.

While this legislation has been used in many instances, it was created before the explosion of cellphone use and the technological advancement that has made these little devices an extensive evidence locker.

A Senate committee was set to begin conversations this week that focus on making amendments to this federal legislation. While some alterations have already been made in an attempt to update it to changing societal conditions, many believe that more are needed. One amendment being considered would require all email access to be done so under a warrant, instead of the current provision that allows warrantless access to ones that are over 180 days old.

Source: The New York Times, “Courts Divided Over Searches of Cellphones,” Somini Sengupta, Nov. 25, 2012

Regardless of how “damaging” cellphone evidence may be for an accused, police must still follow the laws that protect our right to privacy. Ensuring that illegally obtained evidence remains out of court is only one protection our Morristown criminal defense firm helps our clients uphold.

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