吃瓜大本营

We鈥檝e all seen enough police procedurals to know the ordinary flow of a criminal investigation: first, law enforcement develops suspicion; then, it gets a warrant and seizes evidence, like a cellphone or computer, from a suspect; and finally, there is a trial. But sometimes in real life, instead of winding down like an hour-long episode on A&E, that final act is delayed or never happens. If a case drags on, or there is no case, can the government hold onto the digital devices in its possession and the reams of private information they contain for as long as it wants?

Surprisingly, courts have barely addressed this question, let alone answered it definitively. But last month, in a case involving Mike Lindell 鈥� that鈥檚 the 鈥淢yPillow鈥� founder now best known for about the outcome of the 2020 election 鈥� the Eighth Circuit Court of Appeals offered an answer.

The court that even when the government seizes and then searches a cellphone under a lawful warrant, the Fourth Amendment bars it from holding onto the device, or all of the data stored there, indefinitely, just because it might be useful in the future. Instead, the government must offer clear reasons to justify any ongoing retention. Further, the Eighth Circuit held that the Constitution requires courts to weigh the government鈥檚 rationale for keeping seized property against the owner鈥檚 interest in having that property returned 鈥� a substantial interest, given the sheer breadth and volume of sensitive information that cellphones contain.

This is a sensible conclusion with important implications for how courts will regulate cellphone seizures and searches going forward. To ensure that respect for constitutional rights is not left up to government agents鈥� discretion whenever our devices are seized, courts should follow the Eighth Circuit鈥檚 lead in subjecting prolonged retentions of digital property to judicial oversight.

In Lindell鈥檚 case, in the course of investigating an alleged breach of election equipment in Mesa County, Colorado, federal agents his cellphone. They had permitting them to search the phone for evidence of the specific crimes under investigation. Before charges were filed, Lindell brought a civil lawsuit challenging various aspects of the government鈥檚 probe. Among other things, Lindell requested a court order mandating the return of his cellphone and all its data. The government asserted that, once property is lawfully seized, it may be retained indefinitely based on its mere assertion of an 鈥渙ngoing evidentiary need.鈥�

This argument failed before the Eighth Circuit. The court reasoned that the Fourth Amendment鈥檚 protection of individuals from unreasonable interference by government agents does not simply expire once law enforcement obtains a warrant to lawfully search private property. The court first acknowledged the Supreme Court鈥檚 recognition, in a series of strong privacy decisions over the past decade, that our digital devices 鈥渋mplicate privacy concerns far beyond those of other items.鈥� It then observed that the comprehensiveness of the information stored on our cellphones, coupled with the practical realities of , which often involve initially seizing all the information on a device, means that such seizures almost always involve 鈥渁n overbroad capture of information.鈥�

As a result, when the government seizes information beyond the scope of demonstrated probable cause (and no other exception to the warrant requirement applies), Fourth Amendment rights are at stake. The government can copy the data and search it in a manner designed to safeguard confidential, private, and privileged materials. But the government must also substantiate its ongoing retention of lawful property by identifying a governmental interest that outweighs the target鈥檚 privacy and property interests in the device and the original data, or give them back.

The Eighth Circuit鈥檚 conclusion has been by some experts as somewhat novel, but it did not come out of nowhere. In fact, it鈥檚 a logical step from positions the ACLU has advocated in other cases. In friend-of-the-court briefs, we鈥檝e long argued, and various courts have agreed, that individuals retain Fourth Amendment protections for the information police lawfully seize pursuant to a warrant, and that overly-long data retentions can violate people鈥檚 reasonable expectation of privacy and property interest in our digital information.

In one 2015 case that ended up before the full U.S. Court of Appeals for the Second Circuit, the government seized a device in connection with one criminal investigation which fizzled out, but then held onto and searched that device years later to investigate a separate crime, without ever seeking a second warrant. We argued that the continued retention of the device violated the Fourth Amendment, in part because if it did not, every seizure of digital information would tempt police into a freewheeling general search. (The full Second Circuit avoided taking a side, ultimately ruling that the answer didn鈥檛 matter under the so-called 鈥済ood-faith doctrine鈥� 鈥� another target of in recent years.)

Lindell鈥檚 case shows that a person retains a Fourth Amendment interest in their property, including their data, even after an initial, lawful seizure. Even if courts limit police access to this information by cabining searches and imposing 鈥� and they should do both 鈥� there remains an independent privacy and property interest in how our records are analyzed, stored, and shared after they enter government hands.

Exactly when the government鈥檚 ability to retain and access the data becomes unreasonable under the Fourth Amendment is an open and genuinely difficult question. The constitutional command that searches and seizures be 鈥渞easonable鈥� means that there will, of course, be gray areas. That鈥檚 nothing new. A person鈥檚 continuing interest in their phone and the libraries鈥� worth of personal information it stores should place a heavy thumb on the scale in their favor. And generally, the longer the government wants to hold onto a phone, the more it should have to prove to justify its continued possession. Further, only specific reasons, rather than a generalized assertion of convenience or hypothetical value in the future, should form the basis for continued retention by the government.

Especially as storage of digital information becomes ever cheaper, the prospect that the government might indefinitely retain the bounty of private data that it can gather by seizing a cellphone is alarming. The Eighth Circuit鈥檚 opinion goes a long way to preventing the government from holding on to data indefinitely, creating digital dossiers it can use at its discretion in unrelated investigations or years later.

We鈥檒l all be able to sleep more soundly if courts begin to apply these principles, no matter what pillow we use.