BP engineer criminally charged after allegedly deleting damaging text messages detailing oil spillage in the Gulf from his iPhone.

The Background
The Fourth Amendment prohibits unreasonable searches and seizures, and searches without a warrant are generally per se unreasonable, barring several specific exceptions.  Where a citizen possesses a legitimate expectation of privacy, the reasonableness of a government search depends on the specific facts of the case, and whether or not the individual’s protected privacy interest was unreasonably invaded.  Courts typically examine several factors when considering the reasonableness of a search, and whether individual privacy rights were invaded, including: (1) the individual’s interest, (2) the government’s interest in the search, (3) the necessity of the intrusion, and (4) the procedure used in conducting the search.

An Application to Cell Phones
Recent reports have indicated over 90% of Americans use cell phones (http://www.ctia.org/advocacy/research/index.cfm/AID/10316), and half of all American cell phones are smartphones, with greatly expanded contents and capabilities (http://money.cnn.com/2012/05/16/technology/smartphones/?source=cnn_bin).  This prolific use of cell phone technology has troubled courts while considering the reasonableness of government searches.  Applying the traditional factors for determining a search’s reasonableness to cell phones presents unique concerns.  In terms of the individual’s privacy interest in the device’s contents, cell phones, and especially smartphones, often contain multiple gigabytes’ worth of personal information, such as the contact information of friends and family, texts, email messages, and credit card numbers.  Yet, from an evidentiary perspective, the government often has a legitimate interest in searching a cell phone for proof of a crime.  It does not seem unreasonable, for instance, that a cocaine dealer’s cell phone be searched in connection with a distribution charge.  Finally, courts typically consider the scope of cell phone searches, especially given the vast amounts of presumably unrelated data modern phones contain.  Cell phone searches generally cannot be overly expansive, and must be tailored to protect the owner’s constitutionally protected interests.

Recent Example – The BP Oil Spill Case
With cell phones’ vastly expanded use, reasonable, relevant cell phones searches are becoming standard protocol in connection with many criminal charges.  Further, eDiscovery and ESI forensics is playing a growing role in criminal convictions.  Last month, a former BP engineer was charged with two counts of obstruction of justice for allegedly deleting hundreds of text messages from his iPhone detailing the extent of the Deepwater Horizon oil spill in 2010.  BP sent notice to the engineer, requiring him to save all information concerning the well, yet he allegedly proceeded to delete around 300 text messages from his Apple smartphone.  ESI forensics experts were able to recover some of the deleted messages, which indicated the flow rate of oil in the Gulf of Mexico was three times larger than the company had reported as the official flow rate.  For more information on the BP case, see http://www.computerworlduk.com/news/it-business/3353704/bp-engineer-charged-over-oil-spill-data-deletion-from-iphone/.

The Take-Aways
1.  Remember that cell phones and smart phones can be valuable sources of ESI.
As cell phone usage grows, litigators and investigators should be aware of the technology’s potential to include valuable, relevant, and often discoverable evidence.  However, data on mobile phones sometimes has a fairly short shelf life, and can easily be overwritten if not preserved quickly.  ESI forensics experts may be able to recover damaged or deleted data, but quick recovery before spoliation is best.

2.  Courts apply traditional standards to cell phone searches, but cell phones present unique concerns for judges, law enforcement, and attorneys.
Attorneys should be aware of the traditional reasonableness factors’ impact on cell phone searches.  And from a practical perspective, cell phones pose additional problems worthy of consideration.  For instance, a failure to raise, in a motion to suppress, the validity of a cell phone search by authorities may result in waiver of the issue on appeal.  Further, if a magistrate judge strikes out “electronic equipment” from a list of items sought for seizure, failure to raise an objection that search and seizure of a cell phone exceeds the bounds of an arrest warrant may result in a waiver of the argument on appeal.  And defense attorneys must advise their clients to avoid spoliation of relevant cell phone ESI.