New Privacy Rights in Cell Phone Records

Posted by Neil P. Halttunen | Jan 06, 2023 | 0 Comments

Until recently, citizens of Oregon could not expect their privacy to be respected when police started snooping in their cell phone records. Prior to 2022, the courts issued rulings that essentially said that when you allowed a third party (your cell phone company) to keep records of your phone calls and texts you had waived your right to privacy. Under federal law, the courts analyze those cases under the "third party doctrine" and allow police to get into your cell phone records without a search warrant. Fast forward to April 2022 and the Oregon Supreme Court found that the release of cellular phone records to police did constitute a search under Article I, section 9 of the Oregon Constitution saying:

This court recently explained that Article I, section 9, imposes an "objective test of whether the government's conduct would significantly impair an individual's interest in freedom from scrutiny, i.e., his privacy." State v. Mansor, 363 Or. 185, 206-07, 421 P.3d 323 (2018) (internal quotation marks omitted). The obligations imposed by Article I, section 9, "must be read in light of the ever-expanding capacity of individuals and the government to gather information by technological means," and accordingly it "applies to every possible form of invasion-physical, electronic, technological, and the like." Id. at 207 (internal quotation marks omitted).

State v. Harris, 369 Or. 628, 630 (2022).

In other words, Oregon residents now have greater protections of their cell phone records than the federal standard. This case was a departure from many past rulings and is part of a number of recent cases that have given residents of Oregon greater protection from government searches.

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