California appeals court approves cell phone search during traffic stop
theblaze.com
theblaze.com
This probably isn't a great test case to get up in arms about. Here's the opinion:
http://www.thenewspaper.com/rlc/docs/2011/ca-phonesearch.pdf
Some things you'd want to know before formulating your own opinion:
* Since at least '73, the law of the land has been that after you're arrested, the police can without a warrant lawfully search you and the immediate area under your control. The lawful objectives of that search are either officer safety or preservation of evidence. If you're arrested while driving a vehicle, and either of those objectives militate a search of the passenger compartment of your car, the police can search the passenger compartment of your car.
* The argument was made here in an earlier hearing that the cell phone search occurred as part of an "inventory" search; this is one of the contexts in which cell phones were claimed to be a "container". But the controlling appellate opinion here rejected that interpretation; the police cannot search a cell phone to "inventory" its contents.
* But that is a moot point if you are arrested, because the police are explicitly entitled to search your person and your car for evidence if you're arrested. Don't get arrested! Here we have the second "phone-as-container" context: the phone is a container for evidence of crimes. It's this interpretation that the appellate court affirmed, and reasonably so!
* More importantly, in this particular case, this guy was screwed from the get-go. He was arrested for driving a car without a license, for which he could not document lawful possession, after doing 90MPH in a 65, on suspicion (later validated) of being under the influence, accompanied by a clearly intoxicated passenger. When the police searched his car incident to the arrest, they found a loaded gun in the car under the drivers seat, along with drug paraphernalia. Then they found the Blackberry with the screensaver set to the guy holding two assault rifles. Face it. That phone was getting searched. The notion that searching the phone pushes the bounds of "incident to arrest" searches is at best a technicality; under the same pattern of facts, a warrant for the search would be a no-brainer as well.
* ...but it seems extremely dubious to argue that this is even a real technicality. A search of your car is a big deal. The police are not lawfully entitled to invade the privacy of your car without reason. Getting arrested is a big deal. The police are not lawfully entitled to arrest you for no reason (there is a world of difference between arrest and mere "detention"). The search the police get to conduct when they arrest you is explicitly not limited to officer safety (like the weapons search frisk of a Terry stop). This guy's lawyer argues that the phone search was out of bounds because of an expectation of privacy. What expectation of privacy? They're in your car. They found your gun and your secret drug shit. Your privacy is largely out the window. Your trunk might, for a few minutes, be out of bounds because it's not necessarily your trunk. But the phone with your dumbass picture on it holding assault rifles is clearly yours.
Someone downthread had the right practical response to this: lock your phone. There's no secret software the police have that will suck all the info off an iPhone with a 6-digit PIN. Politely decline consent for searches. Do not get in a police officer's face; if you give them a justification to arrest you for any reason, all bets are off. Don't get arrested.
Discovering that it's a website founded and funded by Glenn Beck made all the furor over dude with lots of guns make more sense. Not all phone searches or arrests are a bad thing.
That or use a non-smart phone. That's what i do :P (though i don't have any assault weapons to hide either)
There are the scary tools at http://www.iosresearch.org/ (for one brand of phone under certain circumstances).
No, it doesn't. That's only 60 million combinations. Writing the code would take longer than the brute force search. Of course, there are already commercial applications that do all that.
Let's put it this way: it is absurd to believe that the iPhone's filesystem is encrypted with the PIN number. When the phone turns on, it is already booted up, and applications like MobileMail, Skype, and Latitude are already in the background running with your data. You can receive text messages and phone calls, which are stored as notifications and in the appropriate databases: you don't need to unlock it first.
Meanwhile, none of the jailbreaking tools (which often operate while the phone is in "DFU" mode, after it has been rebooted and without any other human interaction) require you to type in your PIN, yet make tons of filesystem modifications to both partitions (the system one with the firmware from Apple, and the user partition with the data for each user), which should be a pretty obvious clue that you don't need anything from the user to get access to any of that data.
Instead, all of the data is simply encrypted with a key derived from the device, which therefore means that all you need is "virtually any exploit" on the device, whether it be userland (send a fancy SMS message to the device which crashes CommCenter or SpringBoard) or bootloader (attacking it over USB in DFU mode, stealing the keys directly; something we currently can do for all Apple devies but the iPad 2), in order to get access to the personal data (even stuff you recently deleted, of course, due to how filesystems work) which is on it.
(I am frequently wrong even about things I know well; how iPhone device encryption works is not one of those things).
Now, as for the tools, saurik is entirely correct. The PIN code is, for the most part, just a GUI lock - think of it as a screen saver lock. The file system is encrypted on the chip, but applications need to be able to read and write from the file system. If you read the FAQ, I make no secret about how this works: we boot a custom RAM disk (from DFU mode) that mounts the disk. The kernel takes care of the decryption and because we're not actually booting the OS on disk, we don't have any pesky screen saver lock or anything else to even content with, though if we did, the forensic imaging process runs entirely in the background, and has the same level of access (root) that most of Apple's processes do.
As for encryption, what IS encrypted on disk that you can't get from the file system includes keychain passwords, HFS journal (to undelete files, thanks to Jean-Baptiste's most awesome code), and files protected with iOS' data-protection classes. These files are few and far between. In fact, a vast majority of the evidence you'll find on an iPhone is entirely unencrypted. For the files that ARE encrypted, Jean-Baptiste's brute forcing and decryption tools allow us to extract the master encryption keys from the device. Each keychain password is encrypted with its own key ("AES wrap"); we apply the device's keys to this wrap, decrypt the password's key, then use that key to decrypt the password. Apple's data-protection classes are about the same. Each file is wrapped and we use one of the class keys to ultimately decrypt the file. This includes the few files on the device that are encrypted, such as email + attachments, and some third party data files using this encryption.
Once you unwrap that, you'll find that even applications using their own encryption code are storing keys in the keychain - so once the keychain is decrypted, the keys to these third party crypto stores are equally exposed.
The moral of the story here is that the only GOOD way to protect files is 1. To encrypt them (something Apple really doesn't do very well), 2. To have the encryption depend on a very complex key that only the owner has knowledge of and must supply in order to decrypt the files, and finally 3. To protect the device in such a way that the key cannot be intercepted by trojans or other malware. Unfortunately, iOS fails on all of these counts, making it very easy (thanks to many world class hackers contributing code) to defeat all of the encryption on the device, and MOST of the encryption even when the device is password locked.
Scary? What's scary here is just how neglected security is on mobile devices, and how easy it would be for me, or Saurik, or anybody who can use code.google.com to steal all of the data on your device in just a few minutes.
Suppose that in the course of searching my phone, a cop runs the Facebook app. He sees one of my friends make (purely as a joke, as someone who knows him would understand) some asinine, but apparently threatening comment. That comment wasn't there when I last looked, indeed, it's not "there" at all, but on Facebook's server. Could I be considered to be complicit in my friend's (joking) plot?
Now change the circumstance slightly, so instead of FB, it's a SMS text message. Again, it just arrived, so I don't even know it's there. My friend is jokingly asking if I've completed some illegal activity. Can this be used as evidence against me?
The purpose of these 4th Amendment protections isn't just protection of privacy. It's also because in many cases, the evidence implies incorrect conclusions when you assume that the suspect knowingly and intentionally possessed something (of which he was really unaware).
For me, this idea was really driven home by the movie "The Star Chamber"[1]. On the surface it's just a crime thriller, but the idea it posits is really worth thinking about.
To look at the idea further though, these things are best thought of as fishing trips. It's very unlikely anything on your phone is going to directly incriminate you, it's more likely that it's going to point to involvement in a crime and provide the police either with further lines of enquiry (investigating the person who sent the message) or a reason to carry out a more thorough investigation of you (and potentially grounds for a warrant).
On it's own it would it seem that anything of this sort would be, at best, circumstantial evidence.
(All of this assumes that it wouldn't be struck down as unconstitutional - state laws obviously not being able to overturn the constitution).
In the US it's very much second class evidence (though not invalid) but in, say, Italy, it's far more common to build a successful case based largely on circumstantial evidence.
> "the judge ruled that the examination of the cell phone was legal because
> police were allowed to survey the impounded car for their own safety, and
> to preserve evidence."
However, in South Dakota v. Opperman (http://supreme.justia.com/us/428/364/case.html) the court upheld that police may search and inventory a car without a warrant, even though the car was impounded for parking violations and not on suspicion of drug offenses (as it turned out was the case). I would conclude, therefore, that a car impounded during an arrest can definitely be searched.
The interesting part of this case has to do with the precedent that a cell phone is a "container" just like a glove box or safe. As such, when being legally searched (such as when doing an inventory search) it can be accessed and the contents claimed as evidence.
Approaching a police interaction like I said above helps you end the interaction before letting the cop get near the point of reasonable suspicion.
The threat being that you'll get detained and held.
I think that is always the implied threat, that it is just easier to let someone of authority overstep their bounds so as to avoid personal inconvenience and discomfort as opposed to taking a stand and forcing the legality of the issue.
Then if you are illegally detained, that's ANOTHER issue you are welcome to pursue if you enjoy court and lawyers, but we typically don't. The (expected?) result of that is one side keeps pushing harder and harder until we eventually start pushing back.
These seem like standard social mechanics much like what corporations tend to do left unwatched or govt laws. They keep tightening or growing their area of influence until someone or something pushes back.
Our society is just a giant physics simulation of forces interacting on each other, like little (or big) spheres of gravity.
I'd love to see a visualization of the social world around us, would be interesting... you could see the formation of under ground movements becoming more mainstream as those individual forces combined into bigger forces temporarily to combat larger forces, then once the equilibrium was rebalanced, the larger force would disband and go back to micro-influencing the environment around it.
wow... I got derailed there :)
> I believe the same rules for saying "Go ahead and search
> my trunk, but I don't have a key" applies
The police cannot search the trunk of your car incident to an arrest.
The police can open and inventory the contents of your trunk if your vehicle is impounded.
The police can search the passenger compartment of your car if you are arrested.
You can be arrested and not have your vehicle impounded if, after arresting you and satisfying their entitlement to search the passenger compartment of your car, you have a companion who can legally drive the car away. In this case, the guy's companion was intoxicated. The police can consent to leave your car somewhere safe without impounding it, but for all intents and purposes they have the option of impounding it if it can't be removed lawfully on the spot.
If your car is impounded and its contents inventoried, anything that can reasonably be inspected as part of an inventory is admissible as evidence.
This opinion held that inventory searches did not entitle the police to "inventory" the "contents" of a phone.
But that's beside the point here, because the search that busted open the phone wasn't an inventory search; it was a search for preservation of evidence incident to arrest.
I know i'm being dramatic here, but the point is, there has to be a line somewhere. I do want the roads to be safer and I want drivers to be less distracted (texting while driving is actually more dangerous than driving drunk according to a study http://www.cnbc.com/id/31545004/Texting_And_Driving_Worse_Th...), but I also don't want some random police officer rifling through my private text messages, e-mails and voicemails for the purposes of seeing if I should get another ticket.
Additionally, I often make short trips for lunch (.1 miles or less). If a police officer does go through my phone, how is he to know I didn't send that text just as I got in my car before I left Wendy's to return to the office? He doesn't, no one does. That's the problem with this and why I feel it is too much of an invasion.
This law isn't about keeping people safer, whether you were on your phone or not the officer has the right to search it (apparently). I imagine the motivations for this law is the same straw men they always are: drug dealers, illegal activity, child pornography, etc. etc.
> I also don't want some random police officer rifling through my private text messages, e-mails and voicemails for the purposes of seeing if I should get another ticket.
I don't even think it is that clear cut; if the officer pulled you over, he already has a reason to ticket you. Looking through your phone isn't going to make that better/worse unless you are involved in illicit activity and they find evidence of that on your phone. Then worse :)
> Additionally, I often make short trips for lunch (.1 miles or less). If a police officer does go through my phone, how is he to know I didn't send that text just as I got in my car before I left Wendy's to return to the office?
You don't need to worry about this (not what the law is for).
The law's purpose when written does not preclude all the clever uses they find for it afterward.
Out of the gate, say tomorrow, when this law starts getting leveraged against folks I was saying that getting your phone searched specifically because you were talking or texting on it and an officer caught you were likely two different things (there are already "don't use while driving" laws in CA I think).
But like you said, weeks-months-years down the road, there could be some very creative (read: awful) applications of this; just like we saw with wire taping and the "national security" catch all after 9/11.
If you want to force the situation into a grey area, use a strongly encrypted passphrase protected phone, like an iPhone. You'll have a lot more room to maneuver in the case where someone tries to compel you to divulge your passphrase. That's not what happened here.
The pattern of facts here is, if you get pulled offer, arrested for DUI and driving without a license (both of which are arrestable offenses), and the cop finds a loaded gun in your car, you cannot claim that your "expectation of privacy" protects the contents of the phone with your picture on it sitting in clear view in the passenger compartment.