In the United States, we have the right to privacy. The Fourth Amendment protects us against unwarranted invasions of privacy, or against unlawful search and seizure. This right extends to electronic devices, including computers and cell phones.
What does this mean? It means police cannot stop and search you without probable cause, and they cannot enter your home, search your property – including your computer, cell phone and other electronic devices – and seize your assets without a warrant.
Your Right To Privacy Is Not Absolute
It is important to note, your right to be free from unwarranted search and seizure only extends to items in which you have a reasonable expectation of privacy. The Supreme Court has ruled that individuals have a reasonable expectation of privacy in electronic devices, or rather data stored in electronic devices.
However, there are ways to lose this expectation. If you do any of the following, you may forfeit your right to privacy:
- Store data on computers that used by the public
- Place information on the internet
- Store data on shared hard drives
- Make data available through file-sharing programs
- Networking your computer for the purpose of file sharing
- Transmitting data electronically via the Internet
- Giving your computer to a third party
Even if you don’t do any of the above mentioned items, police may still seize and search your cell phone, your computer files, your external hard drive and any other electronic data without a warrant – and in some cases without probable cause. The following are situations where your right to privacy, as it pertains to electronic data, is limited:
Consent: If police ask you if they can search your computer and you consent, they do not need a warrant. You don’t even need to be the one to consent. A third party – like a spouse or roommate – may be able to consent.
Danger of evidence being destroyed: If police have reason to believe your electronic device contains evidence of a crime, and there is a risk the data will be destroyed, they can seize it without a warrant.
Search incident to a lawful arrest: Courts disagree on whether police can search electronic data without a warrant during an arrest. Some courts have allowed the search, others have not.
Plain view: If police can see incriminating images or data on the screen of your computer, they can seize and search it without a warrant. In addition, if police are searching your computer in connection with an alleged crime, and happen across evidence of an unrelated crime, they can use that evidence against you.
Inventory searches: Police have the right to search you and inventory your items during an arrest. However, courts have held police do NOT have the right to search your computer files during an arrest without a warrant.
Border searches: Your person and your property – including your computer files – can be searched without a warrant when leaving or entering the U.S. In fact, per a Supreme Court ruling, border agents do not even need reasonable suspicion to search.
Probation or parole: If you are on probation or parole you have a “diminished expectation” of privacy. This means police can execute warrantless searches of your property, including your electronic devices.
The fourth amendment provides powerful protection – but it is not a guarantee against warrantless search and seizure. The laws governing privacy rights and electronic data are complex. If you are concerned about your privacy rights in regards to computer files, Internet activity or other electronic data, contact The Law Offices of Joseph Lesniak, LLC.