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Cell Phone Privacy What are the Boundaries in Civil and Criminal Litigation

Cell Phone Privacy: What are the Boundaries in Civil and Criminal Litigation?

The use of cell phones in daily life has become the norm, no longer the exception. Now, with technology becoming more and more advanced, smartphones are essentially equivalent to computers you can carry around in your pocket. They can hold information that is both trivial and extremely personal (i.e., bank account information).

The use of cell phones and especially smartphones is becoming increasingly important and, correspondingly, there is more significant usage and hand-in-hand comes privacy issues. Is a smartphone safe from the eyes of the phone company and police? Questions such as these are being answered through caselaw in recent months.

Especially in civil cases, advocates are often asked about cell phone conversations and records. Often, there is evidence that one side wants to obtain or doesn’t want the other side to see on cell phones. Ciyou & Dixon, P.C. clients often have questions about text messages and voice mails and how to maintain them and/or if protected from the other parties involved. These are complex questions balancing security and privacy that must be addressed for each particular client and situation.

While technology is constantly evolving and moving forward (the day you buy the “newest” gadget, the company releases their next version of it), law is slower to change and takes time to catch up with the many implications of technology. This catch up time is frustrating, especially as by the time one issue is caught up, five more have shown themselves and are not able to be addressed until later.

Recently, the U.S. Court of Appeals decided a criminal case regarding this thorny technology as evidence issue. In United States of America v. Abel Flores-Lopez, the Court examined the question of whether a computer (here, a cell phone) can be searched without a warrant. With a criminal case, there is the potential to lose freedom by incarceration so these cases are just that much more important.

In the present case, the suspect was involved in drugs and an undercover officer arrested the defendant and searched his phone for the phone’s number to subpoena records later.

The Court of Appeals reviewed the similarities of the cell phone to a computer and a diary alike. It discussed the ability of owners to monitor their cell phones and wipe them clean at the touch of a button. Therefore, evidence can easily be destroyed in a fairly short time frame due to technology of smartphones. The Court ultimately held that the retrieval of a phone number from a phone was allowable search under the Fourth Amendment.

This decision that cell phones are at least searchable for their number without a warrant is a seeming step toward the conclusion that cell phones are often full of information that is useful and allowable in investigations and trials. At the most basic level, know what is on your cell phone, and be aware of the messages and other e-mation you send and the like.

Thinking of your cell phone as a small computer that may be more easily accessed than you wish allows you to take control of your information, and keep private that information you wish not to share. While “private” itself is a relative term, thinking of the legal uses of a cell phone would benefit everyone.

With the thousands of apps and gadgets, be informed about your technology, especially in the context of litigation.

For instance, in divorce cases, there are often emails or text messages that can start to get nasty and are not the best reflection of either party. Sometimes there is a great deal more. By thinking of those messages not as equivalent to private, one on one conversations, but rather recorded transcripts, you might censor yourself or elected make your point with less disdain.

Be knowledgeable and be aware of your phone and how it is used. The more you are aware, the less potential issues in the future, especially in litigation. If you have learned a bit about search and seizure law and civil law as it relates to cell phones, this blog post has met is goal.

This blog post is written by Bryan Ciyou, Ciyou & Dixon, P.C.. Our advocates practice throughout the State of Indiana.


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Dixon & Moseley, P.C., is a law firm located in Indianapolis, Indiana. We serve clients in six core practice areas: family lawappellate practicefirearms lawgeneral practicepersonal injury and criminal law.

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