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ON THE DEFENSIVE: Technology a constant threat to clients’ privacy

Anthony Cotton is a partner at Kuchler & Cotton SC, Waukesha. He is the vice president of the Wisconsin Association of Criminal Defense Lawyers and on the board of the National Association of Criminal Defense Lawyers.

Anthony Cotton is a partner at Kuchler & Cotton SC, Waukesha. He is the vice president of the Wisconsin Association of Criminal Defense Lawyers and previously served two terms on the board of the National Association of Criminal Defense Lawyers.

In a rare unanimous decision, the U.S. Supreme Court recently ruled in Riley v. California that police must secure a warrant before searching a cellphone owned by a criminal suspect.

That sweeping announcement creates a bright-line rule that law enforcement must follow. The justices were blunt in their ruling, explaining that a warrant is the only option for police unless suspects grant consent to search their phones.

That was a crucial decision for two reasons. First, cellphones are so ubiquitous that the ruling potentially affects most people in the country.

A Pew Research Study found that 91 percent of adults in America own cellphones. That makes cellphones the most quickly adopted consumer technology in the world.

Second, people have high expectations of privacy in their phones, particularly given the significant amount of sensitive and personal information that is often stored within.

But cellphones are just one part of a much bigger topic.

It is only natural that people in law enforcement would attempt to exploit the public’s increasing reliance on technology. In turn, prosecutors would use the evidence to support criminal prosecutions.

The tension between privacy rights and prosecutorial interests will not abate as our desire for new technology increases.

The Riley decision is evidence that the Supreme Court is willing to extend Fourth Amendment protections to widely used electronic devices.

The court also has taken a guarded view of law enforcement practices that use new technologies to exploit the Fourth Amendment. In another unanimous decision, United States v. Jones, the Supreme Court found that it constitutes a “search” when law enforcement officials install GPS devices on cars and monitor their movements.

It is almost certain that law enforcement soon will shift from using GPS technology to tracking and watching suspects by drones. The Supreme Court then will be forced to confront a problem that only a minority of the court in Jones was willing to face: whether long-term surreptitious police monitoring constitutes a search and therefore invades one’s reasonable expectation of privacy.

The defense bar, coupled with the courts, will remain the only meaningful check on an increasing level of police surveillance. Given the favorable treatment those legal challenges received, lawyers should continue to sound the alarm, not just for their clients, but for the sake of society as a whole.

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