Obama administration asks Supreme Court to allow warrantless cellphone searches
washingtonpost.com
washingtonpost.com
I imagine a not too far off future where your glasses tell you your schedule, where haptic and audio feedback are constantly feeding you a stream of your important information; Where even moreso than today, your personal data network is you. There's a chapter in Accellerando ^1 where Manfred's glasses are stolen, and the thug who steals them becomes Manfred by simple virtue of putting them on and being overwhelmed by the signals. He's not a very good Manfred, but he quickly is more Manfred than the person he was. It's only a matter of time before "I" am my newsfeeds, e-mails, calendar reminders, etc.
[1] http://www.antipope.org/charlie/blog-static/fiction/accelera...
It was never intended to prevent evidence you were stupid enough to write down from being used against you.
So basically, "insane or not", the fifth was clearly not intended for this purpose, despite your attempt to view this as "an extension of yourself".
DannyBee is absolutely correct. To my knowledge, data on a computer would be handled like an offender's diary, and that is certainly admissible in court, assuming authentication that the diary was actually written by the offender.
Data is interesting because authentication can arguable be harder to prove. (handwriting is pretty easy to attribute)
The truth is, the founding fathers likely could not have imagined in their wildest dreams that we could have all of human history on a flash drive with us at all times. Trying to apply "how they would have thought" or "WWFFD" to every new technology is kind of insane.
So am I, though not a criminal one :)
>The truth is, the founding fathers likely could not have imagined in their wildest dreams that we could have all of human history on a flash drive with us at all times. Trying to apply "how they would have thought" or "WWFFD" to every new technology is kind of insane.
While entirely true, i think, given the history around the fifth amendment, it would be quite a stretch anyway.
I completely agree with what you wrote above about how just because folks like you or I say "oh, this is/isn't legal" doesn't mean we agree with it.
If you could read it out of people's brains, harmlessly, painlessly, etc, i think that would be fine.
Now remember, the fifth amendment protections apply in custodial settings (and similar), so you would already have to have been arrested/etc at this point (IE probable cause would have existed).
In that situation, if i could read your brain to get the truth, harmlessly, and painlessly, I have trouble seeing how that would be against the reason the fifth amendment was created (now, it may arguably run afoul of the fifth amendment as written, though things like blood tests, etc, are not considered testimonial. I don't believe literal memories would be either)
I must state that this sentiment sickens me slightly. I sincerely hope that this interpretation is absolutely unthinkable by the time technology reaches that point. I don't believe that any world in which one's thoughts and memories are not private can ever be free.
Personally, I would find it abhorrent, but that is not particularly relevant to the law.
I actually believe we are likely to need another amendment to protect us in the future, because I don't think the fifth does or would do a good job of this.
In reality, the hacker may have a perfect understanding of the current law, but disagree with it vehemently, while the lawyer's personal philosophy is actually in agreement with the hacker's statement.
Maybe? I find engineers, like a lot of intelligent people, read a lot and think this means they understand things. If they spend their time starting by reading and learning fundamentals, i'd agree with you. Instead, a lot of the time, IMHO, they read and understand particular cases in particular jurisdictions, and then take that as a truth that applies elsewhere, when it doesn't. Maybe someday i'll make a law for hackers course as a MOOC.
They also want the law to be logical, and present logical extensions of arguments (IE they want the law to be an entirely rule based system, where if all rules are memorized, all outcomes are clear) . It's certainly a necessity to be able to reason logically, but the problem is, at its core, the law is about people and situations, and not logic. Logic is just a method that is used to come up with some possible solutions to these problems, and to determine possible outcomes. It is not a god that must be followed at all costs.
IE Judges are not going to do things just because they are logical, because they are people, and not logical reasoning automatons. The law's goal is to serve a societal need, not to be theoretically sound in all cases.
This often grates on most engineers, who want bright lines and definite answers.
Anyway, this is my experience having been a "real" engineer for 15 years before/during/after becoming a lawyer, and talking to an ungodly number of engineers over the years about things.
It could be my view is skewed because of the career path i've taken :)
I do agree that there is tension between lawyers and engineers on HN, but IMHO, this is due in large part to most lawyers being able to objectively detach their feelings from their legal analysis of a situation (something one is trained to do in law school), and forgetting to mention they are doing this.
FWIW, the thing that bugs me the most is that sometimes the bright lines are more important than the soft stuff like intent and sometimes they are not and there is little rhyme or reason for why. I'm not just talking things like strict liability versus mens rea either, its just that I don't have a good example off the top of my head. Maybe AT&T vs Weev?
Assume the year is 1790.
DannyBee and PG are having a conversation in a sewer beneath Boston. DannyBee tells PG that he is going to rob the town bank and set it afire.
This was a verbal communication between the two.
There was a USG agent around the corner in another tunnel. He heard an echo of the two talking. This is the only evidence of the two communicating about the matter.
How is this prosecuted?
(please forgive the weak analogy - and improve if you can... but please tell me the 1790 equiv argument for what we are dealing with where the snooping is either protected or denied)
My phone needs a pass code to allow any interaction and I could conceivably encrypt data on it. What if I get arrested, but on grounds of the 4th amendment won't reveal the pass code?
Oops. Meant to reply to cgshaw, the child comment.
This varies right now. Essentially, it depends on whether your giving the password would tell them something they can't otherwise prove, and that thing is testimonial in nature: That you maintain ownership of the item, etc.
Basically, if they can authenticate the existence of what information is on the phone, and can authenticate your ownership, you may very well be compelled to give the password. That said, they are very fact specific inquiries, and, AFAIK, the world is still up in the air here.
See U.S. v. Boucher, United States v. Fricosu, United States v. Kirschner, etc.
That said, it's my understanding that personal diaries are admissible in court. Our electronics are similarly private, so the fourth amendment, protecting 'persons, houses, papers, and effects', applies.
Based on what?
The fifth amendment exists mainly to prevent torturing people for extracting information, a practice that was not uncommon in parts of the 16th and 17th centuries.
Extending this to "personal assistants" doesn't seem like anything the founders would have supported, so i'd love to see evidence.
Again, the fourth amendment, i agree, but the fifth? I don't see it.
As mentioned elsewhere, you miss the point of the fifth amendment. It was not because self-testimony was sacred. It is because people were being tortured to get it.
Given that a diary is already written, no current harm will come to you from its use.
Now, if your question is whether this should be protected that's a question about society and whether we need to pass a new amendment. But it's not what the fifth was there for.
That time is already here, and it has a title: "Strong-Selector"
It would be like today considering if we should have a protection against the government taking our DNA and making half-dinosaur hybrid clones of us to use as soldiers. It is not technically impossible, but it's very difficult to see how it would ever be practical.
Unfortunately, the amendment process we have is proving to be rather inadequate. It seems likely that if we didn't already have the Fifth Amendment, we'd never be able to get it considered as a serious issue, much less ratified. Some people would be complaining about the government torturing its own citizens all the time, and the President would be telling us that torture is "a powerful tool, and with great power comes great responsibility", and that we must limit that power so it wouldn't be abused. And at the same time, he'd be going to SCOTUS to try and get permission to do it even more (after all, how can you call it "cruel and unusual" when it's so commonplace?).
The 4th is more than enough to protect the taking of our cellphones. Like any property of ours, our houses for one, it should require a warrant to search
A recording of something that you said is admissible. Why wouldn't a digital recording of something you said be? Because you own it and the court doesn't and shouldn't be allowed to search it without probably cause in the first place.
> The communications that they send and receive should be subject to well-overseen surveillance
Surveillance, all-seeing all-knowing citizen-watching and suspicion-free spying is not okay. Targeted, with-warrant wiretaps are (maybe) a different story. Maybe I define this different than most (please chime in with your own) but the word surveillance means to me that you're being watched from above with many other also-innocent people.
The police already have broad authority to search you and your immediate person incident to an arrest. If this is news to you, you really want to read up on it. This is one of the big things that makes a formal arrest different from mere detention, and one of the reasons the ACLU guides and things like that instruct you to clearly ask if you're "under arrest".
All the DoJ is saying here is that a cellphone is, like your pockets and your bags, a legitimate target of a search incident to arrest. There's apparently a circuit split on the issue. There are other things that aren't legit incident to arrest; for instance, certain kinds of car searches aren't lawful solely because of arrest (trunks can be searched if cars are impounded, but only for "inventory", and can't be searched IIRC if the car isn't impounded; similarly, being arrested outside won't give the police the automatic authority to search your house).
The search incident to lawful arrest doctrine is rooted in officer safety. Specifically, the Court says officers should have the ability to look for guns and contraband when someone is pulled over and it's likely they are armed or their immediate person or vicinity poses a threat and/or has evidence of a crime. The courts have decided that any drug suspicion means they are likely to have a weapon, which is unfortunate, but at least based in some reality.
To my knowledge, the only court (and courts are split) that has allowed electronics to be searched is when a drug dealer was pulled over in California and incident to lawful arrest, the officer downloaded the call history to help them find others involved in the drug trade.
There is NO COURT to my knowledge that would authorize warrantless search or confiscation of someone's cell data, computer data, jump drives, etc. without an arrest taking place. That is a fishing expedition and it's exactly what the Court has ruled unconstitutional under the 4th amendment.
This is where I get very frustrated with the NSAs ability to collect the call information in the first place. The only reason to collect it is to fish later—that's not how the law is supposed to work.
These are complex problems that very few judges or lawmakers have enough understanding of technologically to make informed judgement, IMHO, however.
EDIT - My best guess is that the Court will allow basic access to a cell phone taken in a lawful arrest. I.E., like the article linked above, an officer would be able to look at the call history, but not necessarily download the content of the phone. I think the offender's brief will likely ARGUE that the phone not be accessed at all, with the true hope being the Court merely limits what officers can do.
I have a hard time believing they won't let officers look at any of the electronics with them. I also hope they don't just let officers download everything carte blanche.
Is this another discretionary power afforded to LEO?
Drugs laws, and the Court's interpretation of handling drug crimes gives officers a lot of latitude. I forget the name of the Court case that allows officers to intuit that ANY drug-related offender can be presumed to have a weapon, but the data was actually fairly compelling (without knowing how the data was derived, the outcome was pretty clear—statistical significance that people with drugs are likely to have weapons.
There's also a lot of law about "the person was a SUSPECTED drug offender" because they drove erratically, or were in the wrong neighborhood, or threw something out of the car..... basically anything, and those people can be treated much like folks found to have drugs on them in the first place.
But, if there is no reason to truly arrest someone, the search / seizure shouldn't take place. You usually don't get arrested for minor ordinances... (tickets, lane violations, etc.)
My example was more or less just a common example.
To my mind, if someone was arrested for selling pirated software on jump-drives, the officer would likely be able to check out the call log to look for other conspirators.
The case we're talking about was search after arrest.
If immunity [to a warrantless search] is to be conceived of as a rule, there is one exception that has been established as firmly as the rule itself. The government may search the person of the accused when legally arrested to discover and seize the fruit or evidences of crime.
also (cited in Harris v US):
The right without a search warrant contemporaneously to search persons lawfully arrested while committing crime and to search the place where the arrest is made in order to find and seize things connected with the crime as its fruits or as the means by which it was committed, as well as weapons and other things of effect an escape from custody is not to be doubted.
Officer safety is one of three motivations for search incident to arrest I've read about; two more are evidence collection (as above), and mitigating the risk that evidence that could later be collected via warrant might be destroyed.
Terry stops, on the other hand, are motivated solely by officer safety.
Even if the search happens AFTER the arrest (assuming it's lawful, without that there is no internal link to a legal search), the court is still going to look at whether the seized item was taken incident to the arrest. That's why trunk's can't be searched unless there is a "particularized" reason, i.e. drugs, contraband, other evidence of the specific crime for which the offender was arrested for.
Under that line of reasoning, it's pretty likely courts would be ok with thumbing through the offender's call history to find other possible offenders for the related crime.
Not saying it's right, but that's how the law is evolving on evidence collection. Truth is, we need much deeper analysis on the technology at hand, but our courts are OLDDDDDDDD. Not saying octogenarians can't make effective re: technology, but it certainly hasn't bore out that way yet.
The recent court ruling that made it possible: http://canlii.ca/en/on/onca/doc/2013/2013onca106/2013onca106...
> [75] If the cell phone had been password protected or otherwise “locked” to users other than the appellant, it would not have been appropriate to take steps to open the cell phone and examine its contents without first obtaining a search warrant.
50 years from now, this article is going to seem like a bad joke.
This is already pretty much true today; it will certainly be absolutely true tomorrow.
Allowing warrantless searches of this pile of data eliminates any idea of needing search warrants at all.
When you use words like "every", "any", "always" and "all", it can severely weaken your argument.
This feels like an Orwellian nightmare that I just woke up in.
And the world will be full of crotchety old bastards like myself. Yay!
"Although our country has thwarted new terrorist attacks since 2001, those threats do persist. That is why our reform of the Foreign Intelligence Surveillance Act was so vital, and why the Democrats' opposition to it was so wrong."
Hmm, sounds like they were promising more of the same.
If your suggestion is voting for an independent, is there a realistic scenario where an independent candidate could get elected in the United States?
Do you know about the 5% funding rule in the US? Why not vote for a third party?
Because it does nothing.
If only we required a hard majority of Americans to vote for somebody for them to win, then abstaining from voting could become an option with teeth. Then candidates would have to convince the public that they should vote for them, rather than just convincing the public not to vote for the other guy. Abstaining is, in my opinion, a respectable choice. Any vote is a vote of confidence in the system; if everybody who didn't like any of the candidates just stayed home instead of "voting for the lesser evil", then the farce that is our democracy would be made plain.
Abstaining isn't the only interesting option though. Another option is enfranchisement where instead of voting on the behalf of yourself you instead vote on the behalf of one of the billions of disenfranchised. National elections in developed countries don't just affect the nation in question but rather the world. The lives of many in other countries literally hangs in the balance during American elections but they are not permitted to participate. Perhaps worse, many Americans are not permitted to vote just because they are not recognized as 'citizens'. Next election, perhaps instead of abstaining, vote on the behalf of somebody who is not represented. An individual doing this is not going to change anything but a national enfranchisement campaign has the potential to be subversive.
We need a discussion on what being a democracy actually means.
Unfortunately, the American political system is not equipped to train and empower the type of enlightened leader(s) who can initiate and lead this type of discussion.
Interesting, but it comes with a bunch of conditions (these are for 2008):
- General election spending limited to $84.1 million
- Primary spending limited to $42.05 million
Quick google search revealed that in 2008, the dem/con candidate spent almost $1B each: http://www.bloomberg.com/apps/news?pid=newsarchive&sid=aerix...
I'm not sure the public funding will help! Certainly it might get your foot in the door for one election cycle, but it won't win an election without a lot of grassroots support.
How about a scenario in which all the people who claim to be voting for the lesser of two evils reevaluate their own defeatist attitude? If the only thing stopping a significant enough percentage of people from voting for a 3rd party is the perceived inability to win, then it's just a coordination problem.
It would be interesting to see a poll asking "If you knew the candidate you voted for could win, who would you vote for?"
Another argument for voting according to your principles is that based on the electoral college system, only people living in a few states actually contribute to the outcome of the election with their votes, so if you don't live in one of those states, you might as well show your support for someone you don't consider to be evil.
I think that's a bit idealistic. A lot of people voted Ralph Nader in 2000, and while it's up for debate whether this cost Gore the election, I think many voters are now turned off the idea.
In a close con/dem race, I think many would rather have some of their positions represented by the resulting POTUS than shoot for the moon and risk "splitting the vote". One of the major parties would have to do some truly outrageous shit and alienate their base before this dynamic changes.
For me, recent events qualify.
Voting is a minor part of engagement. It is not a replacement for everything else. Voting for the greater evil may be good strategy sometimes, even, if it is to punish a party and insist that we need better candidates, or elected officers which will follow through on things.
I believe any rational actor would behave as Bush and Obama have during their terms in office. For this reason I can't justify voting for a third party candidate, either, because I still believe they'd act similarly, and with less inherent power, they'd be more easily swayed into acting irrationally (being president helps a great deal in working within your respective national committee, and an independent wouldn't have that support).
The only conclusion I'm forced to face is the undeniable statistical fact that, individually, it doesn't matter if I vote at all.
Citations needed. Politicians have had widely varying behavior in the past. It depends on what the climate created by the citizenry is.
Else it's just a random statement. I believe X. Why would anyone care about my belief?
Furthermore, there has never been a leader of the US who has been able to avoid killing people through military action. Every president in the history of the US has blood on his hands. Arguably, every leader of every country does as well. From Nelson Mandella to Stalin, to Churchill to Sulla, from Nefertiti to William Wallace - all leaders kill people, spy on people, and break their country's laws.
What reason would I have to believe a third party candidate could buck literally thousands of years of corruption, privacy violations and death? It's in the damned job description - leading is immoral, regardless of what party affiliation the leader carries.
So would literally every action taken by Bush or Obama be repeated? No. But you can be damn sure that the things we all have huge problems with would be, by any human being on the planet put into the positions they were put into. They're acting rationally, given the information they've got.
But even if he did, not "every leader" has done those things to the same extent, to the same kind of people, and for the same reasons.
You asked for an explanation, I gave you one. I'm uninterested in talking with you specifically any further, so that's basically as far as we're going to go.
However, I still think it makes sense to vote for third party candidates, if only to force mainstream parties to realize that some of their positions will lose them significant numbers of votes.
In fact, I'd argue that your argument actually supports voting for 3rd party candidates as long as the expectation is that those votes will impact which issues get focus, and not the expectation that the 3rd party candidate will actually win an election.
It is quite likely that if Obama didn't have so many blind loyalists in his pocket that he'd actually worry about being impeached over his recently revealed abuses. Voting 3rd party tells the major parties that issues matter more than loyalty and that we're not serfs.
Impeachment is a violent disruption of that contract, and it makes zero sense to impeach a man who, as I just said, is doing the exact same things every other leader does/has done since the dawn of history.
Voting 3rd party pretends like that 3rd party candidate wouldn't be guilty of exactly the same violations if, by some miracle, the person were to be elected. It's a lie voters tell themselves, and it's worse than voting for a DNC/RNC candidate because it demonstrates either a depressing and dangerous naivety, or a malicious and malignant sense of superiority over others.
Voting for a single issue (to get attention, or to get your view imposed on others) is the act of a fanatic. No single issue is that important. Period. Furthermore, voting is the very last thing that happens in a campaign. Your 3rd party selection will be completely and entirely ignored once the results come in. No cause saw a significant change in public awareness because of a 3rd party candidate.
Voting is a formality, elections are a formality, etc. Democracy is also a formality. There have been many cases of kind autocrats who are loved by the people and who govern with their consent.
Many in the US are biased by the allure of democratic formalities and lose sight of the larger principle which is consent. Whether you vote or not, if you do not dissent then you consent to whatever is happening. This is true in any kind of regime, democratic or not.
I'd argue that it is the duty of all citizens to dissent aggressively when leaders act badly. This can take the form of voting behavior, public or private discourse, letter writing, fundraising, boycotting, civil disobedience, etc.
The contract between the people and their leaders should be reevaluated every hour of every day, not just viewed in retrospect after the 4 year term is over. Impeachment is an extreme measure, and too much of it is bad for the stability of our institutions, but the threat of it should be very real.
But just as stability is important for our institutions, so is trust. If the people cannot trust the president's words, that is just as large a threat to our stability as an impeachment proceeding.
We have granted our leaders the privilege of keeping some state secrets. They have taken that trust and created a massive surveillance infrastructure that goes well beyond what anyone imagined and well beyond the intent of the law. Now it is time to reduce the level of trust and dial back the excesses.
So far our leaders have shown no inclination to engage in a mutually respectful dialog with the public about the excesses (or about the crimes revealed by the leaks, for that matter). This conduct weakens our institutions more than most people realize. It is not only profoundly undemocratic, it is also profoundly disrespectful of the democracy that so many have fought to achieve.
"The Plurality and Hare methods both favour extremists: they can squeeze out a moderate candidate. The blue candidate, stuck in the middle between the red and green candidates, will win when public opinion is moderate with the Approval and Condorcet methods, but has no chance of winning in the Plurality and Hare methods."
/me writes in tptacek / cperciva
>>If your suggestion is voting for an independent, is there a realistic scenario where an independent candidate could get elected in the United States?
Do you feel disenfranchised yet?
What voting does is it gives bite to all the rest of the political action one does during a term of elected office. It is what makes political speech effective. It does not replace it.
I was surprised to read in the article that previous cases have "given the police broad discretion to search possessions on the person of an arrested suspect, including notebooks, calendars and pagers." Those decisions represented a significant loss of due process.
I dislike the administration stance, but they have a fair point. A cell phone isn't substantially different than a paper notebook. Trying to draw an arbitrary distinction between physical and digital media is missing the point. We shouldn't be arguing for stronger protections of digital data. We should be arguing for stronger protections of all data, regardless of how or where it's stored.
It seems like a very small step from looking up the last few people he called to going through all his emails...
To search my home they need a warrant. Which means they need probably cause.
How is a cell phone any different? The law shouldn't be about storage capacity! If it is, then you're saying that they can search the 48 page notebook on the passenger seat, but the 128 page is off limits. That's ludicrous.
Now under the 5th, he should have the right not to unlock it for the police. But they certainly have the right to seize it.
The headline seems to be sensationalist and trying to surf the Snowden saga for readers. It's not related.
Edit: I'm ignoring the sanity of prohibition laws, but just comparing this story to common sense.
You're correct that this is unrelated to the NSA's surveillance programs. However, it does represent a threat to US citizens' constitutional protections.
For digital data, make sure any mobile device you have outside your home has all its data on your home server and that the digital device can be wiped clean of any cached data quickly.
Removing barriers to access seems unfairly risky to me.
Search is supposed to be limited to the area within their immediate control for purpose of seizing any weapons or "obvious evidence related to or separate from the crime incident to the arrest".
I guess it comes down to how we define obvious. Is the file system on my phone obvious?
EDIT: Tom Bihn? You need to get a CountyComm EOD Utility Bag. Nothing says "hello" to TSA like a bag with pockets designed for M4 clips.
If I've already been arrested for something, why do they need to be in my bag? Clearly they already had what they needed to arrest me in the first place, why poke around for more?
(sometimes your posts make me paranoid)
*edit: I understand officer safety, but thinking of already being arrested I assume I'm in custody, and effectively neutralized. And, if I never made any motion or gesture towards my bag it seems safe to assume I am not armed or if I am it's not to hurt the police. Maybe I just am not thinking criminal enough ;)
And hey: I didn't make you paranoid. The very- long- settled- law of the land made you paranoid. I didn't make this up!
But then, that only buys us a couple more years of reasonable delineation; eventually technology will get us to a place where all the data we want to protect is always resident with us.
I'm hoping the supreme court says no but if they say yes, I am at least happy that the correct process was used rather than police continue to search phones while waiting for a supreme court decision.
In other words, your question is inadequately specified.