The Court of Appeals for the Ninth Circuit, which covers California and most of the Western U.S., just delivered good news for digital privacy: abandoning a phone doesn’t abandon your Fourth Amendment rights in the phone’s contents. In United States v. Hunt, the court made clear that no longer having control of a device is not the same thing as surrendering the privacy of the information it contains. As a result, courts must separately analyze whether someone intended to abandon a physical phone and whether they intended to abandon the data stored within it. Given how much personal information our phones contain, it will be unlikely for courts to find that someone truly intended to give up their privacy rights in that data.

This posted was drafted by EFF legal intern Alexandra Halbeck The Court of Appeals for the Ninth Circuit, which covers California and most of the Western U.S., just delivered good news for digital privacy: abandoning a phone doesn’t abandon your Fourth Amendment rights in the phone’s contents. In United States v. Hunt, the court made clear that no longer having control of a device is not the same thing as surrendering the privacy of the information it contains. As a result, courts must separately analyze whether someone intended to abandon a physical phone and whether they intended to abandon the data stored within it. Given how much personal information our phones contain, it will be unlikely for courts to find that someone truly intended to give up their privacy rights in that data. This approach mirrors what EFF urged in the amicus brief we filed in Hunt, joined by the ACLU, ACLU of Oregon, EPIC, and NACDL. We argued that a person may be separated from—or even discard—a device, yet still retain a robust privacy interest in the information it holds. Treating phones like wallets or backpacks ignores the reality of technology. Smartphones are comprehensive archives of our lives, containing years of messages, photos, location history, health data, browsing habits, and countless other intimate details. As the Supreme Court recognized in Riley v. California, our phones hold “the privacies of life,” and accessing those digital contents generally requires a[…]