Is Your Car’s Data Vulnerable to a Warrantless Search?

The Fourth Amendment of the U.S. Constitution declares, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated….”

This amendment protects us against so-called “fishing expeditions,” where government authorities sift through our “effects,” hoping to find evidence they can use to charge us with a crime. The Amendment doesn’t mention cars, but neither does it mention phones.

Nevertheless, the U.S. Supreme Court decided in 2014 that the Fourth Amendment protected the data you keep on your phone. A police officer cannot simply demand to see your phone or compel you to open it up. You’d think that logic would apply to data held by your car, but maybe not.

Fourth Amendment issues related to Smartphones were headline news in 2016, when Apple refused to hand over an encryption key to the FBI, which wanted to unlock an iPhone belonging to the alleged shooter in a mass killing in San Bernardino, CA. Again in 2020, after Saudi Air Force 2nd Lt. Mohammed Saeed Alshamrani shot three Americans at Pensacola Naval Air Station, Apple refused to hand over an encryption key to Attorney General William Barr.

Apple CEO Tim Cook wrote in 2016 that what was “At stake is the data security of hundreds of millions of law-abiding people and setting a dangerous precedent that threatens everyone’s civil liberties.” So, rather than sharing an encryption code the government could use at its discretion, Apple required the FBI to produce a warrant targeting specific information.

Fast-forward to 2020, and many Americans are driving cars that interact with their phones. But does the data housed in your car enjoy the same protection?

It’s been established law for almost a century that drivers enjoy some privacy protection regarding their car. An officer cannot pull you over and randomly perform a search of cabin, glove box, and trunk. Without a warrant, police are limited to plain view searches, and can only conduct a full search of a vehicle when they have probable cause combined with exigency. The Supreme Court handed down that rule, known as the automobile exception, in 1925 in Carroll v. United States. But we’re now in 2022, and authorities are not so much interested in the bootleg booze in your trunk as they are about the data stored on your car’s system.

Riley Beggin, Washington correspondent for The Detroit News, explains that “Cars are becoming more connected to drivers’ mobile phones, drawing call logs, text messages, location history, contact lists, driving patterns and more into the vehicle’s infotainment and navigation systems.” This is a potential treasure trove for investigators. Yet, not everyone believes cars deserve the same protection as a phone.

Adam Gershowitz, a law professor at The College of William and Mary, argues in a recent paper that the automobile exception could allow warrantless searches of your car’s data. Gershowitz argues that states “should pass legislation now to protect personal data in cars before warrantless searches become widespread.” Although the Supreme Court could ultimately rule on the issue, a case could take years to reach the highest level, and by that time, many citizens would have had their rights violated by warrantless searches.

The precedent of warrantless data seizure in autos has already been set by police “in multiple states,” who “use the data stored in a vehicle’s ‘black box’ — which records basic information on speed, braking, seat belts and airbags — to investigate crimes without a warrant.”

As technology continues to evolve, so do the privacy threats. Beggin cites a “new device from Maryland-based Berla Corp.” that can access “detailed call history, contacts, music preferences, social media data, text messages and more.” According to the company’s founder, Ben LeMere, their tech was able to retrieve “such data from 70 phones after connecting to a single Ford Explorer rental car at Baltimore’s airport.” So, could authorities use the automobile exception to conduct warrantless searches of phones that would otherwise be illegal?

Phil Mayor, senior staff attorney for the ACLU of Michigan, agrees that “Police collection of the type of comprehensive and deeply personal data that is stored in cellphones and sometimes transmitted to automobiles through Bluetooth systems raises grave privacy and constitutional concerns.”

One certain thing is that technology outpaces legislation. Therefore, it is not realistic to expect Congress to codify Fourth Amendment protections for every leap that technology takes. Instead, we’re going to have to rely on the Constitutional protections our founders put in place back in the horse-and-buggy days. Will those principles be enough? Or will the technology that promises us ease and convenience spell the end of our freedom? Only time will tell.