When the government wants to seize your computer or smartphone
The US government has lately shown an intense interest in the content of the smartphones and computers held by citizens—so much so that the government has begun to regularly seize such items from their owners and keep them indefinitely. The US Constitution protects us against this (the 4th Amendment requires that any search or seizure must be based on reasonable grounds—thus the traditional requirement for a warrant issued by a judge), but nowadays the Constitution’s provisions (unlike the Constitution as a totem) have frequently been ignored by state and federal officials and even by courts.
Still, when faced with such a situation—and they crop up unexpectedly: in airports, for example, while you’re thinking about the trip you’re taking—it’s important to know your rights. The Electronic Frontier Foundation has a Q&A on your rights, and also has two PDF documents available:
Hanni Fakhoury , the EFF staff attorney, offers the Q&A here. It begins:
Your computer, your phone, and your other digital devices hold vast amounts of personal information about you and your family. This is sensitive data that’s worth protecting from prying eyes – including those of the government.
The Fourth Amendment to the Constitution protects you from unreasonable government searches and seizures, and this protection extends to your computer and portable devices. But how does this work in the real world? What should you do if the police or other law enforcement officers show up at your door and want to search your computer?
EFF has designed this guide to help you understand your rights if officers try to search the data stored on your computer or portable electronic device, or seize it for further examination somewhere else.
Because anything you say can be used against you in a criminal or civil case, before speaking to any law enforcement official, you should consult with an attorney.
Can the police enter my home to search my computer or portable device, like a laptop or cell phone?
A: No, in most instances, unless they have a warrant. But there are two major exceptions: (1) you consent to the search;1 or (2) the police have probable cause to believe there is incriminating evidence on the computer that is under immediate threat of destruction.2
Q: What if the police have a search warrant to enter my home, but not to search my computer? Can they search it then?
A: No, typically, because a search warrant only allows the police to search the area or items described in the warrant.3 But if the warrant authorizes the police to search for evidence of a particular crime, and such evidence is likely to be found on your computer, some courts have allowed the police to search the computer without a warrant.4 Additionally, while the police are searching your home, if they observe something in plain view on the computer that is suspicious or incriminating, they may take it for further examination and can rely on their observations to later get a search warrant.5 And of course, if you consent, any search of your computer is permissible.
Q: Can my roommate/guest/spouse/partner allow the police access to my computer? . . .