Reasonable Searches and Investigations

American law is in disarray over the extent to which police may search a suspect’s mobile phone incident to arrest.

Tips for Police Searches and Other Investigations

This article offers suggestions to police for improving the chance that their search of a device incident to arrest is legally permitted.  These suggestions apply beyond search incident to arrest.  These suggestions can help establish legitimacy for all kinds of investigations, including HR investigations and searches through social media by government regulatory agencies.

How Does Fourth Amendment Apply to Internet of Things?

The Fourth Amendment to the US Constitution protects citizens from “unreasonable” searches by government.  Historically that protection has been interpreted to require police to get a search warrant from a judge before searching for evidence.

But rational exceptions apply.  Law enforcement officers may conduct certain searches without first obtaining a search warrant.  Those searches include looking through a suspect’s possessions (e.g., pack of cigarettes) when placed under arrest and looking inside a house under exigent circumstances (e.g., smoke is billowing out of the house).

But courts are confused about how Fourth Amendment protections and exceptions apply to new, small computing devices like mobile phones.  A mobile phone can contain a great trove of data – even deleted data that can be recovered forensically – and can be gateway to data in the cloud such as a Dropbox or Facebook account.

The confusion promises to thicken as the Internet of Things grows more pervasive.  The Internet of Things is coming to surround people with small, networked computing devices, such as black boxes on automobiles and baby strollers
Black box on
baby stroller!
, smart-watches, smart-eyewear and smart-jewelry.  The Internet of Things is coming to collect, store and provide access to oceans of valuable data such as images, audio, geolocation, health status and social media updates.

Strive for Proportionality

Broadly speaking, data investigations are more legally and ethically defensible if they are proportionate to the situation.  The standard of proportionality is akin to the standard of reasonableness fixed in the Fourth Amendment.

To be proportionate, an investigation must weigh and balance competing interests, such as justice and public safety on the one hand and the right to privacy on the other hand.  For instance, an arrest for an in-progress crime of kidnapping justifies a more intrusive and immediate search than does an arrest for drunk driving.  In-progress kidnapping demands deep and immediate information about the victim’s location and what has happened to the victim.

Proportionality Comes from a Deliberative Process

Here are steps that a police department – or any investigator – can take to help prove that it is acting proportionately in any particular case.

1.  Develop written procedures in advance.

2.  Open those procedures to outside scrutiny, such as input by the public, third party experts or political bodies like a city council.

3.  As an investigation unfolds, earnestly deliberate how far to take or not take a search.  Written records of the deliberation carry more weight than mere human memory.  Deliberation that involves more than one responsible person is more credible than deliberation that involves only one person.

4.  Seek to make decisions about the search that are rational, based on the existing evidence at hand, not emotional or prejudiced decisions.

5.  Effective deliberation promotes the evaluation of alternatives and a search for the least intrusive course of action.  For instance, when a parent is arrested for failing to pay child support, police might be tempted to interrogate the parent’s smart-watch.  But upon further reflection police may decide the smart-watch is harmless to them.  The watch can be neutralized, and any data on it can be preserved, by simply quarantining the watch without searching its contents.

6.  Engage someone to play the role of privacy advocate.  Appointment of an advocate in the position of chief privacy officer can help an agency prove it acts within the bounds of privacy.

7. Protect data gathered from an investigation.  Keep the data away from unauthorized officers.  Destroy the data when it is no longer needed.

See more on proportionality as a standard of performance in data law.