Tackling phone searches in Italy and the United States
| Date | 01 September 2018 |
| Author | Giulia Lasagni |
| Published date | 01 September 2018 |
| DOI | 10.1177/2032284418798053 |
| Subject Matter | Articles |
Article
Tackling phone searches
in Italy and the United States:
Proposals for a technological
rethinking of procedural
rights and freedoms
Giulia Lasagni
University of Bologna, Italy
Abstract
With the advent of digital technologies, most people are constantly carrying in their pockets or
personal belongings an increasing amount of information stored on mobile electronic devices (like
smartphones or smartwatches, just to mention a few). Most of these ‘multifunctional computers that
just happen to have telephone capabilities’ can store tens of gigabytes of private information, a
circumstance simply unthinkable only a few decades ago. The consequences of this situation heavily
affect criminal investigations and appear especially evident in search incident to arrest. Indeed, while in
a predigital era, searching a person meant searching of a physical body and potentially, of carried
physical items, applying the same rules to smartphones or other equivalent devices changes rather
drastically the impact of this investigative technique and confers to law enforcement and/or prose-
cutors access to an incredible amount of personal data. Search incident to arrest, however, represents
only a tip of the iceberg of the revolution brought to criminal justice systems by digital technology, to
which most legal frameworks remains utterly unprepared. Against this background, this article
compares the state of play on procedural safeguards concerning search of digital devices like
smartphones in the United States, after the notorious decision Riley v. California, with the Italian legal
system. From this specific circumstance, general considerations will be drawn upon the need of
rethinking the foundational basis of fundamental rights and freedoms established by the European
Convention on Human Rights and by the Charter of the Fundamental Rights of the European Union in
light of the advent of digital technology, trying to delineate some guidelines from which to extrapolate
procedural rules able to guarantee an adequate level of safeguard in the digital era.
Keywords
rights, Fourth amendment, Italy, Riley v. California
Corresponding author:
Giulia Lasagni, Faculty of Law, University of Bologna, Via Zamboni 22, Bologna 40126, Italy.
E-mail: giulia.lasagni6@unibo.it
New Journal of European Criminal Law
2018, Vol. 9(3) 386–401
ªThe Author(s) 2018
Article reuse guidelines:
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DOI: 10.1177/2032284418798053
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Facing the digital challenge in criminal investigations
Nowadays, digital technology represents one of the most debated and tough challenges for
criminal justice systems, and especially for criminal investigations and procedural rights. This
article takes its lead from a concrete scenario in which this complex issue is especially evident:
When a person is arrested and searched on the spot, and a digital device – let us assume a
smartphone – is found in his/her proximity. Against this background, the following analysis
highlights the inadequacy of applying predigital legal categories to this situation, and more
generally to digital searches.
Indeed, critical issues in this regard do not emerge only in relation to searches incident to an
arrest, but to all cases where digital searches are carried out; nor do they only apply to smartphones,
but may also concern all computers and ‘minicomputers’ commonly used in everyday life, such as
tablets or smartwatches/glasses. However, due to the latter being less commonplace in light of their
recent launch, the impact of these devices has not yet been directly addressed in the case law (not to
mention by statutory legislation).
As a result, smartphones (or other technologically advanced cell phones) represent a particu-
larly appropriate example of digital device to examine the extent to which traditional procedural
guarantees are upheld in criminal investigations. Taking into account today’s highly digitalized
daily context, smartphone technology is indeed ‘old’ and ‘common’ enough to have already been
taken into consideration by the case law of courts of last resort.
At the same time, due to both ‘quantitative’ and ‘qualitative’ reasons, smartphones are very
different from other objects which are usually found on a person during search es incident to
arrest. Under the first profile, smartphones enjoy an immense storage capacity that allows them
to contain huge amounts of data, especially when compared to other predigital objects commonly
carried in pockets or bags, such as wallets or notebooks. Usually, these data are stored in
different formats, including images, videos, audios, texts (which may be of different origins,
like short message service, emails, notes or files), global positioning system (GPS) positions,
Internet search history, online banking information or any other record collected by the various
mobile applications’ software commonly installed on a smartphone. This data frequently dates
back months, even years, allowing a pretty detailed reconstruction of different aspects of the
private life of the searched subject. The main challenging factor to searches incident to arrest,
however, falls perhaps under a ‘qualitative’ perspective, represented by the fact that people are
actually carrying smartphones with them wherever they go. In a predigital era, it would have
been rather unlikely to find a person going around with, at the same time, photo albums, bank
statements, a mapped reconstruction of his/her last whereabouts or a list of the topics he or she
has lately been most interested in. Nowadays, however, ‘it is the person who is not carrying a cell
phone, with all that it contains, who is the exception’.
1
Smartphones, therefore, are channelling
much more sensitive data compared to other nondigital objects and can convey, especially if read
in aggregated form, much more information than it was possible to obtain in the past with
‘analogue’ searches.
1. Riley v. California, 573 U.S. __ (2014), 19, me ntioning also Ontario v. Quon, 560 U. S. 746, 760 (2010), and Harris
Interactive, 2013 Mobile Consumer Habits Study (June 2013), according to which nearly 3
=
4of smartphone users
report being within 5 ft of their phones most of the time; 12%admits they use their phones in the shower, 9%
during sex.
Lasagni 387
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