WHAT EXTRACTLY AM I CONSENTING TO? THE EFFECTS OF DATA EXTRACTION ON CONSENT

By Jessica Bove^*

I. INTRODUCTION

With the monumental decision in Riley v. California¹, courts and legal scholars have questioned the implications of Riley on cell phone searches, particularly because cell phones house large amounts of data. Since Riley, Fourth Amendment law has evolved to recognize a distinction between searches of physical property and searches of data. However, courts still rely on outdated consent laws when determining whether a suspect’s consent to search their cell phone was lawfully given. These laws have only become more outdated with the use of data extraction devices to retrieve cell phone data stored on the cloud. In a case of first impression, the United States District Court for the Southern District of Texas questioned if the scope of consent includes data stored on the cloud and not physically on a suspect’s cell phone.² This paper argues that the Court should update consent law to match the evolution of Fourth Amendment searches. Currently, the standard is that a suspect’s consent must be "knowing and voluntary," but the Court should apply a heightened standard for consent to search cell phones.³ Instead the "knowing and intelligent" standard, used for waiver of Miranda rights, should be applied.⁴

Much of the scholarship in this area ignore consent and focus on other areas of warrantless searches. In A Right To Go Dark (?), David Gray explores whether companies or individuals have the right to go dark, meaning do they have the right to use encryption methods that make data inaccessible to the government.⁵ Currently, private information can still be accessed by law enforcement through lawful means like search warrants.⁶ Allowing citizens to "go dark" would allow them to prevent searches that were otherwise reasonable.⁷ The only way this information could be accessed is through the suspect’s consent.⁸ Gray found that the Fourth Amendment did not provide citizens the right to go dark because the Fourth Amendment only protects against unreasonable searches and seizures, not lawful searches and seizures.⁹