Striking the Balance: Search Warrants and Encryption Protected Smartphones

Authors

Nicholas A. Oliva

Abstract

(Excerpt)

This note’s analysis of searches of encrypted cell phone will be broken down into in three parts. Part I of this note provides context for the balance between individual privacy and law enforcement by reviewing general Fourth Amendment principles and then Supreme Court rulings that apply these principles to cell phones. Part II then details the advancements in cell phone technology, specifically encryption. These new technologies render the data on cell phones inaccessible and lead law enforcement to go beyond search warrants and seek special orders pursuant to the All Writs Act. Part II provides an overview of the All Writs Act and the leading cases that define its scope and concludes that the act does not provide a power to courts to order the decryption of cell phones. Part III then asserts why a judicial response is inadequate to address the issues caused by encryption, and why new legislation is needed that will effectively and lawfully strike the balance between the interests surrounding data encryption on smartphones.