Obama wants all the info in your smart phone without a Warrant
juancole.com
juancole.com
The administration isn't arguing they should be able to search cell phones whenever. The case is about a legitimate search incident to an arrest. The key sentence from the article: "Last month the Obama administration stepped in and petitioned the Supreme Court to hear the case and rule that the cellphone search is, in fact, lawful, because, 'a cellphone is no different than any other object a suspect might be carrying' and thus fair game for searches."
Police are allowed to search you when they arrest you. That includes looking through say a backpack you might be carrying. The Obama administration is simply arguing that the contents of a cell phone should not be treated differently than the contents of a backpack. This is a sensible, intuitive argument to make.
The key consideration for such searches is securing weapons and preventing the suspect from destroying evidence. The weapon concern obviously doesn't exist with cell phones, but the destruction of evidence concern certainly does.
Obama's argument is that creating the additional wrinkle of disallowing searches of particular kinds of things will create additional litigation over searches incident to arrest. Which is a legitimate concern: the courts are filled with all sorts of nonsense by criminal defendants trying to get off on the technicalities of searches.
Setting a precedent that this private information -- and that is what I believe most people would consider the contents of their phones to be -- can be searched whenever you are stopped by police will only cause real criminals to use disposable/non-smart-phones, and further set a trend towards law enforcement being able (and people considering it normal) to access this information routinely.
Litigation overhead is one consideration, but I think the whole legal system is so horribly behind technology advances in general that I'm not sure it's a valid argument just to streamline the arrest/search process.
The flip side of your argument, is that a criminal could store his entire criminal enterprise on a phone.
While I feel it's certainly an invasion of privacy to allow the police full access to my phone in the event of an arrest.
I also feel like some enterprising criminal might offer his friends the ability to remotely wipe their phones in the event of their arrest. Effectively destroying the best source of evidence against someone who uses their phone as a central point of control for criminal activity.
Not sure what a middle ground would be, but I sure hope that someone finds one.
Let's put it this way: we have more prisoners than any country on the planet. I do not think we should be concerned about the difficulties police and prosecutors face with evidence collection.
I shouldn't have to tell you the illogic of this argument.
I don't think the legal system is "behind technology advances" at least usually. I think the reason technologists think that is because they see technology as unprecedented and game-changing (and all those buzz-words). As a result, they think that technology should get special treatment, instead of being analogized to existing practices and concepts.
That's certainly a reasonable way to approach things, but it's a liberal interpretive doctrine. But, right now we're in the midst of a multi-decade conservative trend in the judiciary. The conservative concept is that there is nothing new under the sun, and even though things change, they can be tied back to enduring principles and basic concepts.
My read is that the judiciary doesn't really fail to understand technology. Judges are smart people. People explain all sorts of complex things to them all the time. Explaining most technology is far simpler than explaining, for example, the complexities of a reinsurance agreement between commercial parties. Rather, the judiciary has consciously adopted the conservative tack of not treating technology specially.
So in the cell phone context, it's not that judges don't understand that you can store all sorts of things on your cell phone. They have kids, they know what people store on their cell phones. Rather, they look at the underlying principles behind the rule: the potential for a suspect to destroy evidence in his possession. Well, that potential exists whether we're talking about a cell phone or a day planner. I.e. you can tie the technology back to a timeless concept (people write down their schedules and a suspect might destroy those notes if arrested). That's not a failure to appreciate the advances of technology--it's a conscious decision not to treat technology differently than existing things.
And at this point all arguing over what seems sane under the law[1] becomes pointless. It's a political decision to continue to appeal the supreme court, not a legal one.
And this administration has decided that police should be able to do a complete search of your phone after having arrested you. A search without a warrant, since all the discretion to arrest is with the police.
[1]: a law from 18xx, where people were lucky to carry some coins with them, not their life on digital storage media.
The 1st Circuit does not state the law of the land. It's a reasonable position, up against another very reasonable position, and it's up to the Supreme Court to decide to adopt one or the other.
Intuition is not universal; it's cultural. To some people, who use the mental analogy "a phone is like a little bag, and information is like items I put inside that bag" it's intuitive. To people who use the mental analogy "a phone is a little hole in spacetime I use to communicate with someone who is somewhere else, and information on the phone is part of a private conversation" it's not intuitive.
Why do you say that? In the article it clearly states:
> The case in question dates back to 2007, when a man from Massachusetts was arrested for allegedly selling crack cocaine. Police seized his cell phone and, without a warrant, searched its contents to access information that allowed them to locate the defendant’s home.
Did it not say that when you wrote this comment, or were you merely commenting on the headline or first two paragraphs of the article?
I don't buy that. There is nothing stopping an officer from physically obtaining the phone to preserve its' state pending later search under warrant. The immediate search of a pack/container/whatever for physical threat, I understand. The contents of a phone don't fit this same criteria.
The first common authorization for a search comes from Terry, and allows the police to conduct a cursory search of the outer layers of your clothing (not including pockets) to attempt to detect weapons. The grounding for Terry searches is exclusively officer safety. Terry searches are the basis of "stop and frisk".
The second common authorization is "incident to arrest". The police can conduct a thorough search of your person, effects, and immediate vicinity if they actually place you under arrest. The grounding for this search is both officer safety and collection of evidence. In fact, I think even Rayiner is a little wrong here; the incident to arrest authorization doesn't merely concern destruction of evidence, but is specifically concerned with collecting all the evidence that could be the fruit of an arrest, whether or not it's at risk of destruction. The meaning of search incident to arrest goes all the way back through Common Law.
The Obama DoJ is clearly referring to search incident to arrest.
Additionally, I think it's important to keep in mind the specific way your protections against search bind on the state. You can always sue the state for harassment or somesuch, but the real day-to-day potency of the Fourth Amendment comes from the Exclusionary Rule, which forbids the introduction of evidence from searches that contravene the Fourth Amendment as interpreted by the courts.
Point being: yes, the police can always find reasons to arrest you. For that matter, they can ignore their General Orders entirely, throw you up on your car, and search you and your bags with no cause whatsoever; if you resist that illegal search, you'll be charged (and probably convicted!) of battery. But in the system we have, there's not much point to them doing that, because if they make a bullshit arrest, the evidence they generate from the resulting search will get tossed. Getting arrested is a big deal. They can't just arrest you because you look funny.
You had me until then. "Criminal defendants trying to get off on technicalities of searches" is how we protect our Fourth Amendment rights.
http://www.washingtonpost.com/blogs/the-switch/wp/2013/08/19...
> In 2007, the police arrested a Massachusetts man who appeared to be selling crack cocaine from his car. The cops seized his cellphone and noticed that it was receiving calls from “My House.” They opened the phone to determine the number for “My House.” That led them to the man’s home, where the police found drugs, cash and guns.
It's not quite the easy jump to declare that this case would open the gates to warrantless domestic phone surveillance. The defendant was arrested first. The WP post doesn't say if the police needed a warrant to get into the house or if the call represented "probable cause"
Also worth noting: the phone in this case was a dumb phone
The WaPo article argues that the storage capacity of modern cellphones should make them legally different (even though the phone in this case was a dumb phone), but I'm not sure how such a legal standard would work. I suppose one approach would be for police to be able to search things physically on the phone (like contact lists) but not things that the phone simply gives them access to (like email, social networks, bank info, etc). The problem with a smartphone is not so much that it contains a ton of info, but that it serves as an access point to a lot of personal info that would otherwise require a warrant to obtain.
Maybe the legal analogy would be that police can't search your house without a warrant after they arrest you even if you have your house keys on you at the time. They can search your belongings but can't use those belongings (like keys) to conduct further warrantless searches.
The current situation may very well change. It is entirely possible that much of that information stored "in the cloud" will migrate to being stored directly on people's phones.
Facebook owes the majority of its popularity to being a place that easily hosts and shares photos. The continuing increases in wireless bandwidth and physical storage available on phones coupled with the growing understanding of the security risks of giving personal data to 3rd parties means that paradigm could shift quite easily.
I'm not up on the law with regard to weapons, but assuming there is a difference in charges regarding a gun and a loaded gun, the same argument could be made: you didn't have the right to search the contents of a gun? And yeah, that's stretching the comparison. =)
So how fine grained do you make the warrants? This is already established within the warrant system. As I understand it, you can't search a small locked safe if your warrant limits you to searching the property for a car. But in the case where a person is arrested for selling crack/cocaine, and during the arrest the person is searched, and the phone is found, how far is too far. After all, if a bag of white power had been found, would a separate warrant be needed to search the bag?
Anyways, it seems like this is something that should be addressed. While I'm in support of the 4th Amendment, it discusses unreasonable searches. And it seems reasonable to assume that if you get arrested for dealing drugs, it would be a reasonable thing to search the mobile phone you had for records.
Obviously, not a lawyer here. Completely arm chairing this. Corrections welcome.
Yet I vehemently disagree with your comparison of a cell phone to a wallet. The amount of information carried on a phone dwarfs the information carried in your wallet. The information in your wallet can't give a detail view of where you go, what you say, to whom, and when.
I believe warrants should be very fine grained and not used a troweler net to be cast about hoping to catch someone for any "minor" infraction they can find. The preponderance of regulations, rules, and laws means everyone one in this country is a criminal several times a day and is simply waiting to be caught.
Well yeah, that's why I said it wasn't a one to one comparison, literally right after. So, not sure what you are disagreeing with. Seriously, either you didn't read the rest of my comment, or you chose to ignore it.
> The amount of information carried on a phone dwarfs the information carried in your wallet. The information in your wallet can't give a detail view of where you go, what you say, to whom, and when
Yes, hence my reason for suggesting that they clearly aren't the same thing.
That being said, this case is also not about a smart phone.
> I believe warrants should be very fine grained
They generally are. They are usually very specific about what they are looking for.
Allowing warrantless cellphone searches after an arrest seems at least somewhat legally reasonable to me, as long as police are limited to searching things physically on the phone.
Define "contents of a cell phone".
I'm not trying to trap you. I believe there's multiple valid answers, and my point is that's a very slippery concept, and particularly slippery when it comes to how relatively non-tech savvy users try to manage their usage. What's the difference between an email client that entirely stores email in the cloud, entirely stores it locally, and, say, caches things locally but mostly stores things in the cloud (i.e., effectively randomly has some emails locally and users have no effectively ability to choose which is which)? Should the cops perhaps be mandated to put the phone in Airplane mode before rifling around?
Again, all just questions for discussion. I don't have an easy answer; I could argue in favor or against anything I mentioned here.
Personally I see a distinction between taking you cell phone and searching it. The contents of your cell phone can't be used to shoot cops, especially once the they've taken it off you; and you can't destroy evidence on the cell phone once they've taken it off you. Once it's established that the thing is a cell phone, I don't see an officer safety or destruction of evidence argument for searching its' contents.
In this world of cloud technology, I see a cell phone as like a house key, in that it's a key to my gmail and things like that. Just as finding a house key doesn't let the cops perform a warrantless search of my home, why should finding a device with my gmail credentials saved on it let the cops perform a warrantless search of my e-mails?
Actually my philosophy is that the prosecution is wildly out of line, charging criminals with way more than what is appropriate, so we need fewer laws and a stronger Fourth and Fifth amendments if anything. Suppose they find a black humor joke on your FB wall via your phone? Now you're charged with felony thoughtcrime and your bail is half a million dollars.
And in general, if you give the government enough rope they will start hanging everyone with it. For example, downloading PDFs or CSVs from a public server using a fake User-Agent or changing your MAC allows the government to pursue decades-long sentences under the CFAA. That's bullshit.
So I don't support searching the phone during an arrest, they should be required to get a separate warrant for that.
If the analogy is not essential to your point, just make the point without the analogy.