Bryce Clayton Newell & Bert-Jaap Koops
Volume 72, Issue 1, 229-290
The search of a smartphone by the police in connection with an arrest carries the potential to intrude into the very core of an arrestee’s private life. Indeed, such a search has been compared to providing a “window to our inner private lives,” including aspects of our lives completely disconnected from the reasons for the arrest. In recent years, the supreme courts of the United States, Canada, and the Netherlands (as well as Dutch legislators) have handed down rules about how, and whether, police may search an arrestee’s smartphone upon arrest without first obtaining a warrant or other court order. These responses can be categorized as either container-based or content-based approaches, depending on whether the court (or legislature) focuses on protecting the privacy-sensitive content (for example, personal information) as such or, rather, the container (for example, the smartphone) as a proxy for protecting privacy-sensitive content contained within the device. After analyzing and comparing the approaches adopted in each of these three countries, we argue that both approaches have advantages and disadvantages, and we suggest a combination of the two as a fruitful path forward, balancing the important privacy and law enforcement interests at stake.