When you look at your BlackBerry, you see a gadget full of important email, contacts and other files. Increasingly, authorities see admissible evidence.In a small but growing number of cases, customs officials and police officers have been carrying out warrantless searches of the contents of laptops, mobile phones and other wireless devices. This spring, the 9th Circuit U.S. Court of Appeals in California ruled that "reasonable suspicion is not needed for customs officials to search a laptop or other personal electronic storage devices at the border," including international airports.
And in a handful of instances, courts have supported local police interpretations of legal searches to include browsing through phone call lists and text messages on cellphones when they arrest suspects.
Adam Gershowitz, a professor at the South Texas College of Law, argues law enforcement officials are flirting with a dangerous invasion of privacy under the "search incident to arrest" doctrine, which allows officers to search "containers" on the person of or within the reach of suspects without probable cause.
The doctrine is designed to protect police from a suspect who could reach for a hidden weapon and to prevent suspects from concealing or destroying evidence. Mr. Gershowitz argues that iPhones and other "smart" devices are, in the eyes of the law, now nothing but containers subject to warrantless search.
He and other privacy-rights defenders are calling for a law to make electronic technology different from ordinary containers that can be seized and scrutinized in warrantless searches. They note that warrants are by design a form of checks and balances, protecting suspects from unreasonable searches by requiring the approval of a magistrate, a detached third party.
"These already high-stakes searches will become even more important," Mr. Gershowitz warns. He predicts many more court cases. Industry groups estimate there are now 262.7 million subscriptions to a wireless phone service in the U.S., or roughly three times the number in 2000.
Americans expect a high level of privacy when it comes to their electronic gadgets. The devices have become a repository for their lives. People store sensitive bank information, medical details, work documents, personal photos and emails on their laptops and smart phones. They're outraged when spammed, protect information with passwords they regularly change, and encrypt important files.
Still, critics call some of the recent warnings alarmist, especially when it comes to searches of electronics by local police, which have come to light in only a few cases.
"I don't think I've seen yet a case where police stop someone and for no apparent reason start searching through their iPhone," says Orin Kerr, a professor at George Washington University Law School.
Even privacy advocates acknowledge they have had trouble rallying citizens to the cause of warrantless gadget searching, because many of the suspects have been accused of storing child pornography on their laptops or are drug suspects whose mobile phones reveal calls or text messages to dealers.
The court case that led to the 9th Circuit decision, which pertains only to borders, involved a customs official who clicked on some seemingly innocent icons for "Kodak Memories" and "Kodak Pictures" stored on the laptop of a traveler arriving at a U.S. airport from the Philippines. The files contained two photos of nude women, prompting a search of the traveler's memory stick and compact disks, which contained suspected child pornography. The traveler contested the search.
The court said the contents of a laptop were no different than the contents of a suitcase, and the U.S. was authorized to search the baggage of international travelers "based on its inherent sovereign authority to protect its territorial integrity."
In April 2006, customs officials seized the laptop of a New York computer consultant traveling from Tokyo to Minneapolis. In the course of their search of his file list and thumbnail photos, they found child pornography (as well as some files they assumed were copyrighted -- which they deleted). A court later said the search was legal, and the consultant was hit with child pornography charges. A jury eventually sided with the consultant, who works for the pornography industry hunting down pirated videos, accepting his argument that he stumbled on the child pornography inadvertently.
Laura Keehner, a spokeswoman for the Department of Homeland Security, says the concern is overblown. "You're more likely to be struck by lightning than you are to have your laptop searched," she says, adding that the information gleaned is subject to strict privacy rules.
But various industry groups have expressed concern that there is nothing to prevent customs officials from seizing laptops or mobile devices for hours, or indefinitely, and downloading their contents.
"It could be trade secrets that are at risk there," says Kathleen Brannigan, a spokeswoman for the Association of Corporate Travel Executives. Some companies are stripping laptops of sensitive information before sending employees overseas.
Privacy advocates say the law isn't keeping up with the way we embrace technology. Laurie Levenson, a professor at Loyola Law School in Los Angeles, says new technology "may make your life easier, but it doesn't necessarily protect your privacy."
