What’s the latest in cellphone privacy information? Until cellphone law and the right of others to access your data develops further, we are all in a pinch.
By Randall M. Kessler, Esq.
Cellphone Privacy Information and What’s Going On
What’s the latest in cellphone privacy information? A lot! In Riley v. California and United States v. Wurie, both decided very recently, the U.S. Supreme Court addressed the issue of cellphone privacy. There is certainly much more law to be developed (e.g., can lawyers in civil cases subpoena cellphone information?), but this case was about whether police officers may seize information on someone’s cellphone without a warrant to do so. And the answer is NO. Police may still search the suspect’s pockets or wallet, but the police may not take, open, or search through information on a suspect’s cellphone.
So what does this mean for family law? I don’t know. But that is important. We don’t know, so we must be cautious in our advice. The law could change (or some would say evolve) tomorrow. It seems best at this point to continue to advise that evidence of misconduct not be stored on your iphone. Deleting evidence can be serious and we must advise against that, but discussing future acts, like texting to a lover, taking compromising photos with your iPhone, or even noting an event on your calendar that might disclose illicit behavior should all be discouraged.
This case may be the proverbial camel’s nose under the tent, but when, what, and where will the next case – the one based on civil, not criminal cases – arise? We need more law, better guidance. As always, society, technology, and human inventions are ahead of the law. The law needs to and will catch up. But what to do until then? What I learned in law school is that in the absence of on-point, directive law, we default to common sense. We use other law (such as wiretap law, privacy law, tape recording law) for guidance, but common sense must be involved.
If you are a lawyer with a case involving these issues, don’t be afraid to work to improve the law. Create good appellate law through creative, well-argued, and well-thought-out briefs. The courts and America needs our help. Until cellphone law and the right of others to access your data – which you may think is inviolate – develops further, we are all in a pinch. Clients need to know their rights and we need to know how to guide them. Let’s help each other, the courts, and our society by developing this law. And not just through the courts: help your legislature understand the issues and the real-life consequences of the lack of guiding law (angry spouses who act out once they discover something on a spouse’s phone, for instance).
We can all use the help. And if you are aware of trends or cases in this area, feel free to write me (firstname.lastname@example.org) or to Family Lawyer Magazine (email@example.com) and let’s keep discussing this.
The Spy in Your Client’s Pocket
What do you know about the spy in your client’s pocket? Smartphones map our lives – and the Supreme Court’s re-examination of third-party doctrine of electronic data will have wide-ranging impacts on privacy rights.
Randall M. Kessler is the founding partner of the Atlanta family law firm Kessler & Solomiany, LLC. Mr. Kessler was the Chair of the Family Law Section of the ABA (2011-2012), Chair of the Family Law Section of the State Bar of Georgia (2011-2012), and he currently teaches family law at the John Marshall Law School in Atlanta. Randall Kessler is one of the top Linkedin Influencers with more than 100,000 followers. Follow him or read his posts here.