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Police can usually access digital data without probable cause

Online privacy is a hot-button issue in South Carolina and around the country, and technology companies have been dragged over the coals by the media when they have sold confidential information to unscrupulous third parties or allowed malicious hackers to gain access to it. However, the ease with which law enforcement agencies can obtain personal information from social media companies and online service providers has prompted little in the way of outrage.

Technology companies have sometimes paid a heavy price for placing civil rights over public safety. In 2016, Apple faced a barrage of public and media criticism for refusing to help the FBI gain access to an iPhone owned by one of the perpetrators of the San Bernardino mass shooting. Technology companies hoping to avoid such a problem may feel that turning over data quietly is far more prudent. Lawmakers have also been quiet on this issue. Police are only required to obtain a search warrant to access personal data in California, Utah and Washington.

In other parts of the country, a subpoena is generally enough to give police unfettered access to confidential information. This concerns civil rights groups because obtaining a subpoena is far easier than securing a search warrant because police do not have to establish probable cause. Some technology companies do not even ask for a subpoena. The messaging service Snapchat says that it will willingly share any information it reasonable believes is needed for a legal purpose.

Expediency is sometimes valued above liberty when new technology emerges that can help the police, but Congress and the courts generally take action to protect rights guaranteed by the U.S. Constitution sooner or later. Until that day arrives, experienced criminal defense attorneys could advise their clients to think carefully before storing sensitive information on electronic devices.

Source: CNN, "Apple opposes judge's order to hack San Bernardino shooter's iPhone", Evan Perez and Tim Hume, Feb. 18, 2016

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William G. Yarborough Attorney at Law
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William G. Yarborough Attorney at Law