In a small but growing number of cases, says the Wall Street Journal, 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 U.S. Court of Appeals for the 9th Circuit ruled that “reasonable suspicion is not needed for customs officials to search a laptop or other personal electronic storage devices at the border.” Some 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.
Prof. Adam Gershowitz of South Texas College of Law argues law enforcement officials are close to 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. He argues that iPhones and other “smart” devices are, in the eyes of the law, now nothing but containers subject to warrantless search. 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.