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 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. This Note analyzes existing case law related to digital searches of hard drives and cellphones, to pinpoint the primary legal and policy problems with MDFT use: a lack of transparency, insufficiently informed consent searches, insufficiently scoped search warrants, and inadequate auditing and record-keeping. Further, this Note discusses an aspect overlooked in the current literature--that MDFTs, if used with the appropriate restrictions in place, could help limit rather than expand the scope of cellphone searches. Machine learning algorithms enable features that can auto-detect certain images and text, allowing officers to view only material flagged within the scope of their search. Similarly, MDFTs can generate audit reports allowing greater transparency into and repeatability of searches, allowing courts and defense attorneys to verify that a cellphone search stayed within lawful scope. Finally, because using MDFTs in these beneficial ways won't happen organically, the Note concludes by proposing enforcement of such requirements through a federal statute that would require (1) restricting consent searches, the plain view exception, and types of crimes for which MDFT-enabled searches are allowed; (2) more narrowly scoped search warrants; and (3) record-keeping and reporting requirements to increase transparency and accountability. [ABSTRACT FROM AUTHOR]