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Probable cause and electronic information

When Virginia police officers want to search a suspect's home, car or possessions, they generally must first obtain a search warrant, and the judges who issue these warrants only do so when they are presented with probable cause to believe that useful evidence will be discovered. It may be logical to believe that the Fourth Amendment is pervasive and protects confidential electronic information just as it does personal papers, but that is not currently the case.

The federal government has not passed a law restricting police access to private electronic data, and only three states currently require law enforcement to provide search warrants to obtain it. In the overwhelming majority of cases, technology companies only ask for a subpoena before handing digital information over. This is of great concern to civil rights groups because obtaining a subpoena is relatively simple for police officers as establishing probable cause is not necessary.

One of the reasons companies including Facebook, Instagram, Twitter and Netflix are willing to hand over information about their customers when presented with a subpoena is the price they could pay for not cooperating with law enforcement. Apple Inc. learned this lesson in 2016 when it was criticized harshly for refusing to help FBI agents unlock an iPhone used by a mass shooting suspect. Some technology companies even grant access to requests that are not accompanied by subpoenas. The messaging service Snapchat says that it fulfills all requests that serve a legal purpose.

The U.S. Supreme Court ruled that search warrants were required to monitor phone calls almost 100 years after the telephone was invented, which shows that lawmakers and the courts are often slow to broaden the scope of constitutional protections. This is why experienced criminal defense attorneys may caution their clients to be careful about the kind of information they share with technology companies and exchange using electronic devices.

Source: Time, "Inside Apple CEO Tim Cook's Fight With the FBI", Lev Grossman, March 17, 2016

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