Whether a defense attorney in an internal investigation represents an employer or an employee, it is imperative that the attorney is prepared for the issues that arise when collecting data from a personal smartphone. The authors outline the nearly infinite universe of potentially collectible data that exists within smartphones. Also, they provide an overview of the rights and interests of the employer and employee. Finally, the authors provide a cautionary note about the scope of internal investigations in which a private company becomes a de facto arm of the government.

Brief of the National Association of Criminal Defense Lawyers as Amicus Curiae in support of Petitioner.

Argument: The Supreme Court should grant the petition for writ of certiorari because the smartphone has assumed a unique role in modern society. The modern smartphone is a historically unique device with profound societal implications. Distributed computing and cloud data give mobile computing infinite capacity. Smartphone usage is now societally ubiquitous. This case presents the best vehicle for this Court’s analysis. The smartphone in this case, unlike the phone in Wurie, may possess First Amendment overtones affecting the Fourth Amendment analysis. Lower court divisions make this the right time for this Court to consider the issue. The nature and societal use of mobile data compels the result that the Fourth Amendment prohibits the warrantless search of the data of a cell phone incident to arrest.