What South Carolina is doing to restore the Fourth Amendment

Garry R. Smith Member, South Carolina House of Representatives
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Many of us are never far from our cell phones. We certainly never leave home without them and landlines are becoming an anachronism. But, for all their utility, cell phones are poorly locked portals directly into our private lives.

Cell phones, particularly the newer smartphones, are so useful precisely because they have the ability to store and retrieve an incredible amount of data anytime, anywhere. Almost everything about our families is stored on our smartphones: photographs, email and voice messages, schedules, text messages, and even Internet browsing histories are available to anyone with the skill and equipment to break into these devices. More importantly, smartphones can provide access to bank and credit card accounts, and even medical data.

It is no wonder, then, that electronic communications privacy is becoming more important by the day. As technology advances, so does the ability of intruders to capture our sensitive financial and personal data for criminal purposes. At the same time, while law enforcement has a public interest in gaining access to the data used by criminals in the commission of their crimes, citizens have a constitutional right to be free from government agents rifling through their personal data at will.

Cell phone tracking by law enforcement is becoming an important crime-fighting tool, but a recent U.S. Supreme Court ruling asserted that a GPS tracking device placed on a suspect’s car violated his Fourth Amendment rights. The ruling did not directly involve cell phones, but since all smartphones have a built-in GPS, it raises questions about the standards for cell phone tracking as well.

Citizens need to be protected from invasions of privacy by thieves and they need to know how far the government can go in accessing their personal lives. Moreover, law enforcement and businesses need certainty about the rules for accessing personal data. While Congress and some states have taken steps to provide protections, new technology frequently outpaces the law. The most recent federal law governing searches of electronic communications was adopted in 1986.

Because these issues are important to citizens throughout the country, the matter has been taken up by the American Legislative Exchange Council (ALEC), which is a national conference of state legislators who meet regularly to share ideas on potential model policies that address today’s top economic issues. Through ALEC, I have been working with legislators from around the country to develop model policies to protect citizens both from technologically advanced thieves and from uncertainties in the nation’s search and seizure laws.

As a member of the ALEC Communications & Technology Task Force, I have been able to spend time with civil liberties groups, technology companies, law enforcement, and scholars to discuss the many challenges presented by new technology. This task force has been instrumental in debating and drafting model policy known as the model Electronic Data Privacy Protection Act, which we will finalize in the months ahead and make available to the public at www.alec.org.

A growing concern requiring consideration by legislatures everywhere is how much access police should be given to a person’s cell phone data before being required to obtain a search warrant.

Presently, only four states have laws requiring police to obtain a warrant before “searching” a cell phone. In 21 states, including South Carolina, police are free to search any cell phone in the possession of a person at the time of their arrest.

The courts are struggling with these questions as well. In December 2009, the Ohio Supreme Court held that even if a cell phone is lawfully seized when someone is arrested, the Fourth Amendment generally prohibits the police from searching the contents without a warrant. The Fourth Circuit U.S. Court of Appeals, which includes South Carolina, however, has held that police may search a cell phone incident to a lawful arrest.

Lawmakers need to give the courts some guidance about how far we want to go. The South Carolina Legislature has already begun addressing these issues. In 2012, I sponsored legislation (H4459) which provided that information contained or stored in a cell phone or similar wireless communications device cannot be searched by police without a warrant. The bill was merged with other legislation but failed to pass the House by the end of the session. I plan to try again in the next one.

Three other states — Maine, Montana and Texas — have already acted to protect their citizens’ privacy by passing laws that require warrants for accessing smartphone location data and content. The model I am developing with the help of ALEC draws heavily from these laws.

Smartphones have dramatically changed our lives, mostly for the better, and their utility has made them indispensable. But they expose users to privacy risks, especially in a legal environment that has struggled to keep pace. We must do better.

Garry Smith is a member of the South Carolina House of Representatives.