Don't Let the Feds Rummage Through Cell Phones

[Commentary] When most human activities involve screens and sensors that automatically save data on remote computers, what legal standards should constrain law enforcement's access to that distant information?

It's essential that we get this right, because mobile phones are just plastic boxes that gather and generate data for distant use.

What's important about the handset is the link it provides between a person and all that data. Beyond accessing immediate, on-the-spot communications to protect the safety of arresting officers, any further examination of a phone at the time of an arrest should be made by law enforcement only under the supervision of a judicial officer.

Law enforcement officials often maintain that the advent of the digital era means they need broad new authority to track and apprehend criminals. They call the digitization of information "going dark."

But the reality of mobile-phone technology, and the power we humans allow mobile phones to have over our life patterns, belies this claim. Rather than going dark, these digital times are allowing law enforcement to shed more light on human lives than ever before. We shouldn't let this happen without independent judicial oversight.

[Crawford is the John A. Reilly Visiting Professor in Intellectual Property, Harvard Law School]