The lead story on the front page of Monday’s New York Times features an article on how courts and legislatures have divided on the law of cell phone privacy. Unfortunately, the story rather confusingly switches back and forth between considering at least three different legal questions:
1) What privacy protections the Fourth Amendment or statutes extend to the cell-location records generated by phone companies and stored by them, if the government comes to the phone company and wants the records of where the phone was located.
2) What privacy protections the Fourth Amendment or statutes extend to copies of text messages or e-mails that providers may have stored, if the government comes to the provider and wants to obtain copies of a suspect’s text messages or e-mails.
3) Whether the Fourth Amendment permits a warrantless search of the cell phone — and if so, how thoroughly — incident to a valid arrest.
The potential confusion of these distinct issues appears to be the result of the story being based heavily on an unusual decision of the Superior Court in Rhode Island, State v. Patino. Patino is an 190-page opinion, and it includes lots and lots of discussion and analysis of how the Fourth Amendment and statutes apply to various problems involving by cell phone privacy. On one hand, that analysis includes some interesting discussion. I was particularly interested in the material around pages 72-76 on why the third-party doctrine does not extend to the contents of communications (in part because it engages my argument in The Case for the Third-Party Doctrine). On the other hand, the analysis in Patino tries to take on lots of major conceptual issues that aren’t really implicated by its narrow facts. For example, Patino involved a search of a phone stored in an apartment, so the third-party doctrine isn’t relevant: The third-party doctrine is relevant only in the context of efforts to obtain communications over the network, not from a user’s machine. (Put another way, the third-party doctrine is relevant to questions 1 and 2 above, but not question 3.) I suspect Patino‘s attempt to express views on so many different issues had a strong influence on the Times story; that may explain why the Times story mixes issues in ways that most readers aren’t likely to follow.
One nit: The Times story at one point says that “In Texas, a federal appeals court said this year that law enforcement officials did not need a warrant to track suspects through cellphones.” I suspect the article means Ohio, not Texas: It probably is referring to United States v. Skinner from the Sixth Circuit.