How Are the Privacy Rights of Defendants Protected in Sex Crime Investigations in a Digital Age?

The internet, modern devices and enhanced tracking capabilities have created dozens of new avenues by which law enforcement can track and build cases against sex crime defendants.

Law enforcement can use GPS tracking to map the location history of a suspect’s device, and establish their whereabouts at specific times. The tracking data can be used to verify or dispute alibis with precision that wasn’t available in even the recent past.

Obtaining text messages and social media interactions provides the full text of conversations between victims and perpetrators.

Digital evidence can be vital for both defendants and prosecutors to contextualize relationships between parties or establish behavioral patterns. For example, this information could be used to corroborate accusations or provide evidence that a sexual encounter was consensual. 

Law enforcement can glean information regarding nearly every aspect of a defendant’s life or online activity by analyzing the data on their devices, including their smartphones, tablets and computers. Browser histories, downloaded files and app usage may be key in solicitation or other communication-based crimes.

The increasing usage of cloud storage allows law enforcement to mine data stored remotely, including photos, videos and documents. Even information a defendant or accuser may have believed was deleted can often be recovered. However, in most cases, investigators are required to obtain a warrant to mine a defendant’s personal data.

Arizona’s Protections for Digital Privacy Rights Are as Old as the State

The Fourth Amendment of the U.S. Constitution and Article 2, Section 8 of the Arizona Constitution have built-in safeguards that apply to digital privacy rights. The U.S. Constitution protects against unreasonable searches and seizures, as does the Arizona Constitution which states, "No person shall be disturbed in his private affairs, or his home invaded, without authority of law."  

This means law enforcement agencies are required to obtain a warrant before accessing digital information that isn’t publicly available on social media or published elsewhere online. In other words, in order for law enforcement to access a person’s email, text messages or files, they need to first obtain a warrant based on probable cause.

There may be exceptions, such as if someone being investigated consents to a search or there are exigent circumstances, such as a threat to public safety, or there’s a real risk of evidence destruction.

Even when law enforcement attempts to use exigent circumstances to excuse their collection efforts, the evidence can often be challenged by defense attorneys.

The Digital Privacy Threats Facing People Being Investigated for Sex Crimes in Arizona

Overreaching Search Warrants

Digital search warrants may lack specificity. For example, instead of targeting only relevant data to a case, like messages exchanged between specific individuals in a narrow timeframe, law enforcement may access a person’s entire message history. This may result in the exposure of vast amounts of unrelated, sensitive information.

This can lead to invasive and unwarranted scrutiny in unrelated aspects of a defendant’s life, such as their finances, relationships or private conversations. These warrants may also constitute a ‘fishing expedition,’ or an overbroad search intended to find anything even remotely incriminating. Defense attorneys can often challenge these searches in court.

Questionable Surveillance Tools

Law enforcement has many digital surveillance tools that skirt the edge of legality.

Stingrays, which mimic cell towers to capture location and data from nearby devices, can collect data from not only the target device but any other devices in the area, constituting a serious privacy infringement for people who are caught up in the collection net. These devices may also collect unrelated data on a suspect’s device that investigators have no right to access.

Mishandling Sensitive Information

Law enforcement and people in prosecutors’ offices are not always above reproach in their own professional conduct. Unrelated and inadmissible data that has nothing to do with the case and is beyond the scope of warrants can be mishandled, potentially exposing defendants or others to cybersecurity risks.

A person’s personal data isn’t immune from breaches when in the possession of law enforcement, especially if the agency isn’t using adequate encryption or appropriate access controls. This could have a variety of consequences, from reputational damage or professional repercussions to psychological harm.

Even when law enforcement doesn’t intentionally violate a defendant’s privacy rights, poor data management can lead to inadvertent breaches.

A Phoenix Criminal Defense Lawyer Committed to Effectively Pursuing Every Avenue of Defense in Sex Crime Cases

Digital privacy rights can provide defense opportunities for attorneys savvy enough to leverage mistakes or law enforcement missteps. There may be legal grounds to question improperly obtained or mishandled digital evidence, or avenues for challenging the legality of digital evidence or collection methods.