Adam M. Gershowitz (William & Mary Law School) has posted “The Tesla Meets the Fourth Amendment” on SSRN. Here is the abstract:
Can police search a smart car’s computer without a warrant? Although the Supreme Court banned warrantless searches of cell phones incident to arrest in Riley v. California, the Court left the door open to warrantless searches under other exceptions to the warrant requirement. This article argues that the Fourth Amendment’s automobile exception currently permits the police to warrantlessly dig into a vehicle’s computer system and extract vast amounts of cell phone data. Just as the police can rip open seats or slash tires to search for drugs under the automobile exception, there is a strong argument that the police can warrantlessly extract data stored in a vehicle’s infotainment system.
When a driver uses Bluetooth to connect their cell phone to a vehicle, the driver transfers text messages, call history, contacts, emails, photos, videos, and even social media information from their phone to the car’s infotainment system. Police departments can then use a sophisticated data extraction device to download all of that cell phone data.
Police in multiple states have already acknowledged extracting rudimentary digital data from cars without a warrant. As Tesla and other smart cars become ubiquitous, police departments will be tempted to use more sophisticated data extraction tools to examine private cell phone data without first obtaining a warrant. Because the Supreme Court moves extremely slowly in addressing the legality of high-tech searches, this article argues that Congress and state legislatures should amend outdated privacy statutes to require police to obtain search warrants before extracting private cell phone data from a vehicle’s computer system.