Will Electronic Driver’s License App Entitle Police to Search Smartphones?

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Iowa has become the first state to actively pursue the use of electronic drivers’ licenses on smartphones. Announced in 2015, Iowa’s Department of Transportation began plans to offer their own license mobile application to state drivers for free. The electronic application would allow Iowa police to accept the application at traffic stops in lieu of a traditional license, and Iowa intends to also allow airport security officers to use the application for identification purposes as well.

While many states already allow drivers to demonstrate proof of insurance via electronic means, this would mark the first time a state recognizes electronic applications as proof of identification.

Although many laud the innovation for its potential in time-saving and convenience, critics of the program have already raised a number of concerns. Besides the obvious potential for hacking or forgery, attorneys have also noted the privacy concerns that surround the surrender of a cellular phone to a police officer.

Currently, law enforcement is permitted to take both a driver’s license and registration back to their vehicle for review. As such, it would follow that a police officer would similarly be allowed to take a driver’s cellular phone back to their vehicle for examination. Legal experts often cite Riley v. California when discussing what standards a warrant must meet in terms of searching a cellular phone. Specifically, from Riley, we know that “probable cause” or “exigent circumstances” gives officers significant purview when it comes to search and seizure. Without clear guidelines that apply to search of a mobile application on a cellular phone, the search of a driver’s phone could go beyond the mere review of the driver’s license application to other information stored on a cellular phone if the law enforcement officer deems it necessary.

Presently, the law does not address search and seizure in regards to mobile phone applications nor what an officer must do if a phone call or text message is received while the phone is in the police officer’s temporary possession. As many mobile applications automatically push notifications to the cellular phone’s home screen, it may be impossible for a police officer to ignore and not read the message, even if it is unintentional.

If other states intend to follow Iowa’s plans to introduce electronic drivers’ licenses, state and federal legislators must be vigilant about including strong privacy safeguards. As state immunity and privilege will always be a concern in legal relationships and interactions such as these, pro-privacy and consumers’ rights attorneys should, at the very least, be consulted during the drafting and creation of such mobile applications and the governing language of their use.

For more information on this topic, please visit our Data Privacy service page, which is part of our Technology & Data Practice.

Klemchuk LLP is an Intellectual Property (IP), Technology, Internet, and Business law firm located in Dallas, TX.  The firm offers comprehensive legal services including litigation and enforcement of all forms of IP as well as registration and licensing of patents, trademarks, trade dress, and copyrights.  The firm also provides a wide range of technology, Internet, e-commerce, and business services including business planning, formation, and financing, mergers and acquisitions, business litigation, data privacy, and domain name dispute resolution.  Additional information about the technology & data law firm and its technology & data attorneys may be found at www.klemchuk.com.

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