Afterlife Privacy: Can Cops Search Your Phone Post-mortem?

October 23, 2023
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Does a person have legal standing, when they are no longer standing? This article addresses how the Fourth Amendment impacts a deceased persons right to privacy on their mobile phone, when a search warrant is needed, and a decedents digital legacy.

The Digital Imprint of Our Lives

Mobile phones have indeed become indispensable in our daily lives, serving as archives of our personal histories. As technology has advanced, the capacity of these devices to store vast amounts of data has grown exponentially. Consequently, law enforcement agencies and forensic experts have recognized the immense value of mobile phones as reservoirs of evidence in criminal investigations. In instances of suspicious deaths, the data extracted from a deceased individual’s phone can offer critical clues. Call logs, text messages, and geolocation data can provide a timeline of the individual’s activities leading up to their demise. Similarly, any deleted files or encrypted information can be retrieved and analyzed to shed light on potential foul play or corroborate alibis. Furthermore, apps that track health metrics or physical activity can be used to cross-reference and validate forensic findings. Social media activity, browsing history, and even notes or voice memos can also be instrumental in piecing together the events preceding a suspicious death. In essence, a mobile phone can serve as a silent witness and a voice of the deceased from beyond the grave, helping to confirm or refute suspicions and playing a pivotal role in delivering justice.

Privacy Rights vs. Investigative Needs

The crux of the matter lies in balancing the privacy rights associated with a deceased individual’s data and the legitimate interests of law enforcement agencies. While a person’s right to privacy doesn’t necessarily die with them, their ability to challenge the search does. A person’s Fourth Amendment rights gives them privacy protections while you are alive, but they do not extend past your death. Law enforcement can, and frequently does, conduct warrantless searches of decedents electronics.

Digital Legacy

A digital legacy refers to the digital footprint an individual leaves behind after their demise, encompassing all online assets, profiles, data, and content associated with their digital existence. In today’s interconnected world, a person’s online life will continue long after they are gone. It includes social media profiles where countless memories, interactions, and personal milestones are stored; email accounts that serve as repositories of personal and professional correspondence; digital photo albums and videos that chronicle our life’s journey; blogs or personal websites that might have been nurtured over the years; and even digital assets such as cryptocurrencies, online bank accounts, or e-commerce profiles.

The fact that the account owner is deceased does not automatically give law enforcement access to the accounts and the data therein. The online data that our digital legacies are made of resides within the computers of the service providers. The decedent does not have standing to object, but Facebook certainly does. In the event that digital legacy data is needed by law enforcement, a search warrant may well be required. Even knowing the passwords, law enforcement cannot log into the decedent’s accounts and they would be performing a search of a disinterested third party, ie. Facebook.

The dead man’s cellphone search

While the law is continually evolving, a few cases have set preliminary benchmarks in this area. In the 2018 Florida officer involved shooting case involving Linus Phillip, Police wanted to search Phillip’s locked cellphone for evidence related to the investigation into his death and a separate drug case. Phillips body had been released to the funeral home and officers attempted to unlock Phillip’s cellphone by pressing his digits against the fingerprint sensor. The plan failed as the fingerprint sensor requires the small electrical pulses that only a living finger would produce. Phillip’s family was sure that he would not have provided his fingerprint willingly, but the court sided with law enforcement allowing Phillips posthumous participation in their investigation.

He has no standing, because he’s not standing.

Numerous court decisions have determined that individuals who have passed away can no longer exercise their legal rights, resulting in limited protections for the deceased and their families. When it comes to electronics, it is important for law enforcement to consider CalECPA privacy protections and think about where the data actually resides before the search. As with every unusual situation, always consult with your legal counsel, DA or Prosecutor.