Adam Gershowitz, an assistant professor at the South Texas College of Law, raises an interesting point about the iPhone and similarly tricked-out mobile devices: If the police stop you and find some legal cause to arrest you, they are probably free, under judicial interpretations of the Fourth Amendment, to search the device.
This means that a standard traffic stop -- say they get you for drunk driving or excessive speeding or any number of other arrestable offenses -- could conceivably lead to a search of your entire Web history, your photos, and potentially even your online accounts at banks or social networking sites.
The iPhone is a portable window to your whole world -- and while arresting you for something comparatively minor, the police may get to look through that window without any approval from a judge.
Gershowitz's theory, which he outlines in a law review article, rests on a legal doctrine known as "search incident to arrest." Ordinarily, the police aren't allowed to search your possessions unless they obtain a warrant. That's the essence of the Fourth Amendment, the one we all grew up with on "Law and Order."
One exception to this is a search incident to arrest -- if the police are arresting you, they can search you and your possessions without first obtaining a warrant. During the past few decades, Gershowitz explains, courts have given the police wide rein in conducting such searches. If police arrest a driver, they're allowed to search not only the driver but the car, passengers in the car, and "containers" in the car -- envelopes, wallets, aspirin bottles -- that they find. And incriminating evidence they find -- even if it's not related to the crime they're arresting you for -- can be admissible in court.
In recent years courts have been asked to rule on the legality of police searches of electronic devices found during the course of an arrest, and judges have almost always come down on the side of the officers.
Police have been allowed to search through pagers and cellphones for contacts and messages, and evidence found on those devices -- text messages that prove that the arrestee was involved in a drug ring, for instance -- were ruled admissible in court.
Newer mobile devices like the iPhone are qualitatively different from pagers and cellphones of yesteryear: They hold much more personal information about their owners, and they're connected to the Internet, which holds still more personal information. When the cops find an iPhone, then, they're sitting on a gold mine of personal data.
Gershowitz notes this theoretical case: Say an officer finds an iPhone on a fellow during an arrest. The cop then brings up the iPhone's Web browser, scans the bookmarks, clicks on one called "porn," which takes him to a Web page that requires a member's username and password, which the iPhone has fortunately remembered -- so the cop presses "submit," and he sees that the Web site has a message function, which the cop then logs in to, and finds, there, an incriminating conversation about the exchange of child porn.
Or something else hypothetically damning -- messages about buying drugs, or buying bongs, or, in Alabama and Texas, buying dildos. Or, say the cop logs into your bank account and finds evidence of financial fraud. Or he looks at your pictures, videos and songs and finds evidence of mass copyright infringement.
All that information would have been private and inaccessible to the government in the days before the iPhone. Now, though, it can conceivably be used against you in court.
Gershowitz goes over possible remedies to this problem. One is for courts to follow the prescription of Justice Antonin Scalia, who favors reducing the scope of the search incident to arrest doctrine. In Scalia's view, only searches that are related to the cause of the arrests should be legal -- if the cops arrest you for not wearing a seat belt, they can't search for drugs, because that's not related to your crime.
Another remedy is for legislatures to limit the scope of police searches of electronic devices. States could specifically prohibit cops from looking at your online profiles on your iPhone, say, if they're only stopping you for driving under the influence.
That's not likely to happen soon -- or at all, unless there are cases in the courts that prove Gershowitz's theory true. As yet, his idea is hypothetical. Still, perhaps it'd be wise to keep a password lock on your iPhone. The cops can't get through that without a warrant.
Hat tip to Techdirt's Mike Masnick for this; read Gershowitz's paper here.
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