MOBILE DEVICE FORENSIC TOOLS: A HELP OR A HINDRANCE TO CONSTITUTIONAL CELLPHONE SEARCHES?

U.S. law enforcement agencies are increasingly relying on advanced mobile device forensic tools (MDFTs) when conducting digital searches of cellphones and other devices. MDFTs are powerful tools built and sold by third-party vendors, which allow law enforcement to (a) circumvent security features to...

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Bibliographic Details
Published inStanford law & policy review Vol. 35; no. 2; p. 284
Main Author Applegate, Taylor
Format Journal Article
LanguageEnglish
Published Stanford Law School 22.03.2024
Subjects
Access control
Consent (Law)
Criminal suspects
Evidence
Exceptions (Law)
Forensic sciences
Good faith (Law)
Laws, regulations and rules
Mobile devices
Privacy, Right of
Probable cause
Third parties (Law)
Warrants (Law)
Online AccessGet full text
ISSN1044-4386

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Summary:U.S. law enforcement agencies are increasingly relying on advanced mobile device forensic tools (MDFTs) when conducting digital searches of cellphones and other devices. MDFTs are powerful tools built and sold by third-party vendors, which allow law enforcement to (a) circumvent security features to access locked cellphones, (b) access data stored on the device, cloud-based backups, and online accounts, and (c) utilize enhanced cellphone data analytics, sorting, and querying capabilities. Although some 2,000 law enforcement agencies in almost every U.S. state are using MDFTs, there is little public transparency into the technology. This is particularly concerning considering police often use MDFTs in consent searches, even if the person subject to the search is unaware that the tool enables police to conduct a full download ("extraction") of the data on their device for subsequent parsing. Even with a warrant, as the U.S. Supreme Court's ruling in Riley intended to require absent an exigency, lower courts' unpredictable application of the plain view doctrine in digital search cases can and indeed has permitted authorities to "rummage" through a mobile device until evidence of some crime is discovered. Even in the rare instances where courts have deemed cellphone warrants illegally overbroad, they have been quick to apply the good faith exception to the exclusionary rule, removing any incentive for police to narrow the scope of future affidavits. The broad, unchecked digital searches enabled by MDFTs are even more concerning today as many states criminalize abortions or restrict access to gender-affirming medical care, among other repressive laws.
ISSN:1044-4386