Comment by jasonlotito | Hacker News Reader

Comment by jasonlotito | Hacker News Reader

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So, I might be in the minority, but I think this is a fair discussion to have. At it's most basic level, it's a question of whether the contents of items found can be apart of the search. After all, if the police have the right to search you, then they are allowed to open the wallet you are carrying and search it (and obviously this isn't 1:1 the same as a mobile phone, but I'm just trying to have an honest conversation about this, so if you want to anally start picking apart individual phrases or words, go somewhere else please. Edit: Clearly, reading comprehension isn't the same or as valued. I'm not suggesting a wallet and a phone are the exact same thing. Nor am I suggesting they are comparable. If your comment starts off by saying this, you've failed. I should just have made a comment about how this is awful and "OMG Snowden!" rather than have a discussion).

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.

One of the prime reasons it's constitutional to perform stop-and-frisk and searches incident to a lawful arrest is so suspect can't shoot the cops or destroy evidence. Seems reasonable enough.

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?

"At it's most basic level, it's a question of whether the contents of items found can be apart of the search."

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.

I agree this is a conversation that should be had.

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.

> Yet I vehemently disagree with your comparison of a cell phone to a wallet.

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.

When they find a bag of white powder they have probable cause to believe it might be cocaine (who carries flour in plastic bricks?) and it's also reasonable at that point that they would pursue a warrant for the home. But when they find a cell phone they have no reason to suspect the phone contains evidence of a crime. There should be a separate warrant for the phone. The phone has all your information on it, they can look through your emails using it -- to my mind that's like getting a free pass to search a home because someone was arrested for something unrelated (like a drunk and disorderly or something).

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.

The problem is that searching a wallet upon arrest is not comparable to also searching a cell phone. For many people large parts of their lives are on their cell phones. For these people searching their cell phones during a traffic stop arrest would be closer to searching their house instead of their wallet.

I would agree with you, but the danger of cellphone searches seems to be that smartphones allow access to data far beyond what they actually contain since they're often linked to numerous online accounts. Arresting someone doesn't give the police the right to search their email, but having access to their cellphone might give them the ability to do so.

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.

A nice clear and comfortable line is that the police can conduct a physical search that increases their safety. Stored data is generally not physically dangerous.

That is generally the purpose of the exception, but the other purpose is preventing the destruction of evidence. Maybe the rule should be that the police can secure but not search the cell phone during an arrest, and have to get a separate warrant after the fact.

This sounds reasonable so the eventual ruling will probably be something totally orthogonal.

Every time you make an argument by analogy and feels the need to include a huge, broad, partially ad-hominem disclaimer about how people can't point out the flaws in the analogy, think again.

If the analogy is not essential to your point, just make the point without the analogy.

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