The Importance of Judicial Oversight in the Retention of Digital Devices by Law Enforcement

The Background

Police procedurals on television have given us a perception of how criminal investigations typically occur. Law enforcement develops suspicion, obtains a warrant, seizes evidence, like a cellphone or computer, from a suspect, and finally, there is a trial. But what happens when a case extends beyond the typical timeline or there is no case to be tried? Can the government hold onto the digital devices in its possession and the reams of private information they contain for as long as it wants? Surprisingly, courts have barely addressed this question, let alone answered it definitively.

Last month, the Eighth Circuit Court of Appeals finally offered an answer in a case involving Mike Lindell, the “MyPillow” founder known for purveying skepticism about the outcome of the 2020 election. The court ruled that even when the government seizes and then searches a cellphone under a lawful warrant, the Fourth Amendment bars it from holding onto the device and all of the data stored there indefinitely, just because it might be useful in the future. Instead, the government must offer clear reasons to justify any ongoing retention.

The Implications of the Eighth Circuit Court of Appeals’ Ruling

This ruling may have a significant impact on how courts regulate cellphone seizures and searches going forward. Courts should follow the Eighth Circuit’s lead in subjecting prolonged retentions of digital property to judicial oversight to ensure that respect for constitutional rights is not left up to government agents’ discretion whenever our devices are seized.

The comprehensiveness of the information stored on our cellphones, coupled with the practical realities of digital searches, means that such seizures almost always involve “an overbroad capture of information.” As a result, when the government seizes information beyond the scope of demonstrated probable cause (and no other exception to the warrant requirement applies), Fourth Amendment rights are at stake.

The Government’s Claims

In Lindell’s case, federal agents seized his cellphone in the course of investigating an alleged breach of election equipment in Mesa County, Colorado. They had a warrant permitting them to search the phone for evidence of the specific crimes under investigation. Before charges were filed, Lindell brought a civil lawsuit challenging various aspects of the government’s probe. Lindell requested a court order mandating the return of his cellphone and all its data.

The government asserted that, once property is lawfully seized, it may be retained indefinitely based on its mere assertion of an “ongoing evidentiary need.” This argument failed before the Eighth Circuit. The court reasoned that the Fourth Amendment’s protection of individuals from unreasonable interference by government agents does not simply expire once law enforcement obtains a warrant to lawfully search private property.

The Fourth Amendment’s Protection of Data

In recent years, the Supreme Court has recognized that our digital devices “implicate privacy concerns far beyond those of other items.” The comprehensiveness of the information stored on our cellphones, coupled with the practical realities of digital searches, means that such seizures almost always involve “an overbroad capture of information.” As a result, when the government seizes information beyond the scope of demonstrated probable cause, Fourth Amendment rights are at stake.

An Independent Privacy and Property Interest

Lindell’s case shows that a person retains a Fourth Amendment interest in their property, including their data, even after an initial, lawful seizure. Even if courts limit police access to this information by cabining searches and imposing use restrictions on non-responsive data — and they should do both — there remains an independent privacy and property interest in how our records are analyzed, stored, and shared after they enter government hands.

Judicial Oversight

It remains an open and genuinely difficult question to determine exactly when the government’s ability to retain and access the data becomes unreasonable under the Fourth Amendment. A person’s continuing interest in their phone and the libraries’ worth of personal information it stores should place a heavy thumb on the scale in their favor.

Especially as storage of digital information becomes ever cheaper, the prospect that the government might indefinitely retain the bounty of private data it can gather by seizing a cellphone is alarming. The Eighth Circuit’s opinion goes a long way to preventing the government from holding on to data indefinitely, creating digital dossiers it can use at its discretion in unrelated investigations or years later.

Courts should begin to apply the Eighth Circuit’s principles to ensure that respect for constitutional rights is not left up to government agents’ discretion whenever our devices are seized.

Originally Post From https://www.aclu.org/news/privacy-technology/the-government-cant-keep-digital-devices-and-data-forever