Court Rules That There Is No Expectation of Privacy in the Contents of a Cell Phone Loaned to Someone Else

If you lend someone a cell phone, do you maintain an expectation of privacy in the contents? This is, all of a sudden, a hot topic.

A recent Fourth Circuit Opinion (per curiam) address this issue. The case is Casella v. Borders. (fourthamendment.com had this earlier)

This is a civil Section 1983 case. The plaintiff had nude pictures of herself on her cell phone. (Why do people continue to do this???) She then lent her phone to her boyfriend. When boyfriend was arrested, the police searched the contents of the phone incident to an arrest. (If you are interested in the legality of a cell phone search incident to arrest, see this article.) The officers discovered the pictures. Worse, an officer then announced over the radio system \"that the private pictures were available for [public] viewing and enjoyment."

The issue before the court was whether the plaintiff had a reasonable expectation of privacy in the images after she lent her phone to the boyfriend. The court said no. The court reasoned that she did not exercised a right to control the cell phone or its contents after giving the phone to the boyfriend. The court said, "undoubtedly hoped and intended that the images would not be viewed by anyone other than [the boyfriend], but hopes and intentions do not make Fourth Amendment rights."

This case may be unique, but the lesson is clear: don't lend out your cell phone. I think that the law may eventually evolve towards a concept of expectation of privacy based on access, not physical possession, of data. But we are not there yet.