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Comment by silentguy | Hacker News Reader

Whether the dead should have the right to privacy is a contentious issue but I think it is indisputable that accessing a dead person's phone violates the privacy of others who had been in contact with him over the phone. He could have private photos, texts, emails of his friends and families who would not want those to be accessed by someone else.

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In the US, at the moment, only the owner of the phone is legally treated as having a privacy interest in it, and that interest ends at at the moment of death. You can argue for this to change -- and there are reasonable arguments to make for change! -- but right now it's perfectly legal for police to search a dead person's phone without a warrant.

If it’s a lawyers phone I’d expect the clients would have a legal claim to privacy.

I could also imagine potential HIPAA issues if the device owner was a medical professional.

Other than the potential that the dead owner’s employer might have to give a breach notification, probably not HIPAA issues.

HIPAA restricts what health insurers and providers do with your data, but it doesn't restrict third parties from attempting to get information that the covered entities aren't allowed to give.

Most of these responses are bringing up things where specific information obtained from the phone could be challenged later if someone tried to use it in court. They don't bring up anything that would pre-empt the search of the phone itself, though.

See, for example:

https://www.forbes.com/sites/thomasbrewster/2018/03/22/yes-c...

Choice quote:

And it's entirely legal for police to use the technique, even if there might be some ethical quandaries to consider. Marina Medvin, owner of Medvin Law, said that once a person is deceased, they no longer have a privacy interest in their dead body. That means they no longer have standing in court to assert privacy rights.

Relatives or other interested parties have little chance of stopping cops using fingerprints or other body parts to access smartphones too. "Once you share information with someone, you lose control over how that information is protected and used. You cannot assert your privacy rights when your friend's phone is searched and the police see the messages that you sent to your friend. Same goes for sharing information with the deceased - after you released information to the deceased, you have lost control of privacy," Medvin added.

So, once again: if you're alive, you can assert your Fourth Amendment rights with respect to your phone. Police will need a warrant to search it. Once you're dead, the only person with standing to fight the search on Fourth Amendment grounds is, well, no longer standing. They can search warrantless.

At the moment of death the phone becomes the property of the estate, it’s not like the police get free reign to your stuff because you are dead.

Police can't claim ownership of your phone. But they certainly can search it. See my reply to the other commenter.

Sure, but I would trust the police to handle their data with the same respect and circumspection that they handle all private data they must routinely encounter.

This is a joke, right?

It’s Hacker News. Asking commenters to expand their field of vision past their nose is a losing proposition.

Not a joke at all. The police are not your enemy and they're not out to get you and suck up all your data in order to best violate your privacy.

While I disagree with your view that police reliably handle privacy and personal data with "respect and circumspection", it's unfortunate that you're being downvoted for expressing a legitimate opinion.

Thank you.

I suspect it's probably because the exceptions to the rule bump privacy violations to the top of the news by a very vocal and outraged minority. But if you consider the magnitude of personal data the police must have access to on a daily basis that is kept secure and confidential and eventually destroyed compared to the occasional news story we hear about, they're doing a much better job than we give them credit for.

Also - as IT people, I bet the majority of us have access to a huge amount of personal data on a daily basis as well. I would absolutely say the majority of us treat this data with respect and circumspection and that only a tiny few don't.

Please don't mistake me for a police apologist, I'm well aware of their capabilities and actions, especially border police, but the polarising us vs them culture separates us and makes us disempowered victims. If you genuinely, honestly care about data privacy and the privacy of those you communicate with, use encryption.

That's a rather naive view. If you come to their attention and provide a useful, low-friction solution to achieving their metrics then all those statements become invalid.

This is a hopelessly naive view.

Police training teaches officers to try to elicit evidence of criminal behavior in every interaction with the public.

An officer is always, always, always, trying to find evidence that you have committed a crime any time they are talking to you, observing you, or searching your property. Every interaction with a police officer is an adversarial encounter.

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