The ACLU of Oregon, together with ACLU national, has filed an amicus brief before the Oregon Supreme Court in State v. Turay. The Court will be considering the degree of particularity required of search warrants targeting electronic devices such as cell phones. While the Court has previously held that search warrants for electronically stored data must specify what information is sought and – to the extent possible – when that information was created, it has not yet decided whether warrants must also provide guidance about the types of files or data included in the scope of the search. In other words, warrants must currently describe the targeted evidence and provide a date range, but they are not required to limit the types of data law enforcement can examine in pursuit of that information. For example, under current law, a valid warrant might authorize a search of “communications between co-conspirators A and B between May and August of 2019” – but in executing that search, law enforcement may open not only text and audio communication files, but also photos, videos, health tracking apps, streaming services, Internet browsers, etc.
In our brief, we urge the Court to adopt a requirement that search warrants must specify, wherever possible, the types of data law enforcement can search and seize. In many cases, it will be clear that probable cause supports the search and seizure of some categories of data but not others – and in those instances, courts must exercise their authority to protect individuals’ privacy interests by setting clear boundaries on the scope of the search. Modern devices, particularly cell phones, contain an enormous quantity of sensitive data, ranging from geolocation history to photos to fitness information to communications between loved ones. In the same way that a warrant authorizing the search of a physical space imposes limits on where that search may go (perhaps into file cabinets in pursuit of incriminating financial documents, but not into bathroom drawers), digitally oriented warrants must set boundaries to protect the “privacies of life” contained on our hard drives and in the cloud. Riley v. California, 573 U.S. 373 (2014). We encourage the Court to recognize this reality and join other courts around the country in upholding protective particularity requirements for digital search warrants.