When a Tesla Cybertruck exploded outside of Trump International Hotel in Las Vegas earlier this month, police quickly discovered a trove of information about the perpetrator. We don’t know if police got a warrant to search the Cybertruck, but they definitely didn’t need one.
The explosion looked like a possible terrorist attack; police had to act quickly to determine whether there might be other explosions or there were dangerous perpetrators on the loose. The Fourth Amendment has long permitted police to search without a warrant when there are exigent circumstances.
The average Tesla owner obviously isn’t blowing up their vehicle outside of a Trump hotel. So should they be worried about the police having power to conduct a warrantless search of their Tesla and all the text messages and location data that their car contains?
Actually, yes, Tesla owners should be worried. There is a much broader exception to the warrant requirement — the automobile exception — and it very well might let the police warrantlessly search the computer inside of your smart car.
Exactly 100 years ago, in 1925, the Supreme Court considered a case where police warrantlessly searched a car to look for bootlegged liquor hidden in the car’s upholstery. The court used that case to create an automobile exception to the Fourth Amendment’s warrant requirement. Because cars are mobile and can disappear before police have time to get a warrant, the court allowed police to warrantlessly search vehicles as long as they have probable cause.
Over the last century, the automobile exception has been a powerful tool for the police. They regularly rely on it to search cars that they have pulled over on the highway and vehicles that they find parked on the street. The cops can do a quick search of the car, or they can spend hours or days looking through the vehicle. They can search the car at the scene, or they can tow it to the police station and do a meticulous search. Courts have repeatedly said that the automobile exception lets police dig deep into a vehicle, including ripping open seats and disassembling gas tanks. The automobile exception is broad, and the police use it millions of times per year.
Teslas hold a vast library of digital information. They and other smart cars are essentially cellphones on wheels. Drivers connect their phones to the vehicles and send their text messages and other private data right to the vehicle’s computer. Teslas also have multiple cameras that capture video in practically every direction — even when the car is parked and no one is inside. Smart cars don’t just hold evidence of criminal activity. They contain a detailed roadmap and movie reel of your entire life.
So can police point to the automobile exception and search your Tesla for text messages and other digital data without a warrant? Courts haven’t yet tackled this question. But when they do, they will likely conclude that warrantless searches of your car’s computer are lawful. Current law strongly suggests that police can treat your Tesla’s dashboard computer like any other part of the vehicle.
First, there is absolutely nothing in the Supreme Court’s automobile exception cases that suggests digital data in cars should be treated differently than physical items. (When the Supreme Court forbade warrantless cellphone searches in 2014, it limited that case to searches conducted as part of an arrest, and it has not expanded that decision in the subsequent decade.)
Second, there is no federal or state law that prevents the police from warrantlessly searching the “infotainment” computer system in Teslas or other smart cars. The only federal law that exists is “The Driver Privacy Act of 2015,” which imposes very modest limits on the use of “black box” data about speed and braking from the moments before an accident.
When it comes to digital data and your Fourth Amendment rights, the Supreme Court has been asleep at the switch. The court has decided only two major digital Fourth Amendment cases in the last dozen years, neither of which has much to do with the computers in smart cars. And there are no signs that we should expect much from the Supreme Court any time soon. With personal privacy on the line and the court missing in action, Congress should step up and ensure that warrantless searches of smart car data are limited to the type of exigent circumstances that happened outside of Trump hotel this year.
Adam Gershowitz is the James D. and Pamela J. Penny Research Professor at William and Mary Law School.
