Police officers and federal agents usually must obtain search warrants if they wish to search a New Jersey resident’s home or automobile, and judges will only authorize searches when they are presented with sufficient probable cause. However, the confidential personal data that individuals share with technology companies is far easier for law enforcement to access. Most companies only ask for a subpoena before handing over this information, and police officers can obtain a subpoena without probable cause.
Only California, Washington and Utah have laws in place that require search warrants to access confidential information, which is a state of affairs that has civil rights groups worried. Organizations like the American Civil Liberties Union say lawmakers and citizens are putting far too much trust in private corporations to protect rights against unreasonable search and seizure guaranteed by the Fourth Amendment. The ride-sharing company Uber says that it turned over information on more than 3,000 of its drivers and customers to police and federal agents in 2017. Only 231 of the 1,404 requests it received from law enforcement were accompanied by a search warrant.
Many technology companies are extremely concerned about how the public perceives them, and their willingness to acquiesce to law enforcement could be influenced by the criticism levelled at Apple Inc. in 2016 for not helping authorities to unlock an iPhone belonging to a mass shooter. Some companies do not even ask for a subpoena before surrendering personal information. The messaging application Snapchat is on record as saying that it will hand over any data it believes is required to comply with a legal process.
The information age has unleashed markets, and it is taking the courts and lawmakers time to address the privacy and civil rights issues thrown up in its wake. Experienced criminal defense attorneys may advise their clients to use electronic devices carefully and bear in mind that law enforcement access to digital information is currently a legal gray area.
Source: Time, “Inside Apple CEO Tim Cook’s Fight With the FBI”, Lev Grossman, March 17, 2016