Cellphones and the 4th Amendment

Pertinacious Tom

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Cellphones and the 4th Amendment

Can the police search your phone (or the phone you are carrying) if you are arrested?

...According to a long line of Supreme Court precedent, the police do not need a warrant to search the individuals they arrest, and that includes both the persons and possessions of the arrestees, including any bags, containers, or other items they were carrying. Furthermore, the police may conduct a warrantless search of the immediate vicinity around the arrest site. This exception is designed to help law enforcement prevent the destruction of evidence and to discover any evidence or weapons that might have been concealed.

The rise of the cell phone complicates this picture. Unlike diaries, notebooks, or briefcases, all of which the police are allowed to search incident to arrest, cell phones contain previously unimaginable amounts of personal information, including not only words and images but also GPS location data. In other words, should getting arrested for a minor offense like jaywalking be sufficient to allow the police virtually unlimited access to your private affairs in search of additional wrongdoing?

...

The Obama administration has sided with the police. “Although cell phones can contain a great deal of personal information,” the administration argues in its Wurie brief, “so can many other items that officers have long had authority to search, and the search of a cell phone is no more intrusive than other actions that the police may take once a person has been lawfully arrested.”

The lawyers representing David Riley take the opposite view, comparing a warrantless cell phone search incident to arrest to the “odious colonial-era practice of executing general warrants—warrants that enabled officers to rummage though people’s homes and offices for whatever incriminating items they might find.”

An amicus brief filed by a group of Fourth Amendment scholars urges the justices to strike a balance. “Rather than allowing warrantless searches of cell phones incident to arrest,” the brief argues, “the Court should encourage law enforcement officers to place cell phones in [aluminum-lined] Faraday envelopes or aluminum foil to prevent the remote wiping of data from the phone while officers seek a warrant.” This approach has the virtue of allaying any law enforcement concerns about the destruction of evidence while still respecting the citizenry’s constitutional rights.

Oral arguments in Riley v. California and U.S. v. Wurie are scheduled for April 29, 2014.
They want the police to put tin foil hats on cell phones. The humor potential is there, but I'm going sailing. You all have fun with it.

 

Pertinacious Tom

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No one? OK, I'll try.

Lots of breeze here yesterday and I came back from sailing to find my 2.5 year old tent canopy ripped end to end.

Rain is on the way so I bent an aluminum serving tray around the mast hinge to protect it from rain, prying eyes, and remote data wiping.

ripped-sun-cat-tent.jpg


 

slatfatf

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I am seriously thinking about going back to a non-smart phone. Now that I have my client list reduced to a more manageable level, it seems the negatives that come with it are enough to negate any positives. Like fast food, it may be convenient, but that doesn't mean it is good for you.

 

Pertinacious Tom

Super Anarchist
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Punta Gorda FL

Pertinacious Tom

Super Anarchist
60,961
1,625
Punta Gorda FL

Pertinacious Tom

Super Anarchist
60,961
1,625
Punta Gorda FL
Judge John Facciola is my new hero

Facciola has twice in recent rulings denied requests to secretly search e-mails related to the investigation of possible kickbacks involving a defense contractor. First, he objected to the Justice Department’s request for the “entire universe” of information related to a particular account and compared the broad request to rummaging randomly through a person’s belongings.

When an investigator renewed the request a few weeks later, Facciola dismissed it as “the same defective and unconstitutional request” and said he had no choice but to order the a narrower search to be performed by the service provider, Apple, rather than the government. He referred to an earlier opinion by Magistrate Judge David J. Waxse, based in Kansas City, who had suggested a similar approach in a 2012 case, saying that turning over the entire contents of an e-mail account to authorities was equivalent to giving police every piece of mail sent to a home, instead of only those letters demonstrably related to an investigation.

Such rulings have set off alarms across the tech industry, prompting companies to worry that they could be dragged into the machinations of the criminal justice system. Outside legal scholars raised serious concerns as well.

Orin Kerr, a George Washington University law professor and former Justice Department attorney specializing in computer crimes, said several of Facciola’s opinions are “effectively daring the Justice Department to appeal him as a way of starting a conversation.”...

Judge David Waxse too!

 

slatfatf

Super Anarchist
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Judge John Facciola is my new hero

Facciola has twice in recent rulings denied requests to secretly search e-mails related to the investigation of possible kickbacks involving a defense contractor. First, he objected to the Justice Department’s request for the “entire universe” of information related to a particular account and compared the broad request to rummaging randomly through a person’s belongings.

When an investigator renewed the request a few weeks later, Facciola dismissed it as “the same defective and unconstitutional request” and said he had no choice but to order the a narrower search to be performed by the service provider, Apple, rather than the government. He referred to an earlier opinion by Magistrate Judge David J. Waxse, based in Kansas City, who had suggested a similar approach in a 2012 case, saying that turning over the entire contents of an e-mail account to authorities was equivalent to giving police every piece of mail sent to a home, instead of only those letters demonstrably related to an investigation.

Such rulings have set off alarms across the tech industry, prompting companies to worry that they could be dragged into the machinations of the criminal justice system. Outside legal scholars raised serious concerns as well.

Orin Kerr, a George Washington University law professor and former Justice Department attorney specializing in computer crimes, said several of Facciola’s opinions are “effectively daring the Justice Department to appeal him as a way of starting a conversation.”...

Judge David Waxse too!
Interesting. The technology and resources necessary for tech companies to deliver on narrow warrants is relatively simple in the case of email, but gets more complicated in social networks where it is hard to pin down a legal description that actually fits what the technology does. I can see why tech companies ears went up when they heard this. With that being said, I do hope this judges decisions are a sign of things to come, I don't like where our correct trajectory is taking us.

 

Pertinacious Tom

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Interesting. The technology and resources necessary for tech companies to deliver on narrow warrants is relatively simple in the case of email, but gets more complicated in social networks where it is hard to pin down a legal description that actually fits what the technology does. I can see why tech companies ears went up when they heard this. With that being said, I do hope this judges decisions are a sign of things to come, I don't like where our correct trajectory is taking us.
The judge is right that asking for an entire email account is the same as asking for all mail to a physical mailbox. I can't believe he's considered a rebel for noticing this.

As for social networks, it may indeed be much harder to sort interactions based on hashtags on Twitter or "Likes" on Facebook to see which ones are related to a warrant. To the tech companies, my response would be, "Get to work!" Solve that problem. To the government, my response would be that taking all the information just in case some is related to a warrant goes too far.

 

Pertinacious Tom

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Yesterday, the Supreme Court heard arguments about whether police need a warrant to search your phone if you are arrested

At issue in both Riley v. California and United States v. Wurie is whether law enforcement must obtain a warrant before conducting a cellphone search incident to arrest. As I explained in a recent column, the Court's answer to that question is likely to have a profound impact on the rights of all Americans in their dealings with the police:

According to a long line of Supreme Court precedent, the police do not need a warrant to search the individuals they arrest, and that includes both the persons and possessions of the arrestees, including any bags, containers, or other items they were carrying. Furthermore, the police may conduct a warrantless search of the immediate vicinity around the arrest site. This exception is designed to help law enforcement prevent the destruction of evidence and to discover any evidence or weapons that might have been concealed.

The rise of the cellphone complicates this picture. Unlike diaries, notebooks, or briefcases, all of which the police are allowed to search incident to arrest, cellphones contain previously unimaginable amounts of personal information, including not only words and images but also GPS location data. In other words, should getting arrested for a minor offense like jaywalking be sufficient to allow the police virtually unlimited access to your private affairs in search of additional wrongdoing?
My answer to that question would be no. We'll see if they let me ghost-write the majority opinion again.

 

Pertinacious Tom

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Scotusblog coverage of yesterday's arguments

Going into the oral argument, both California and the federal government told the Court that, whenever police make an arrest, cellphones should be fair game for a search for all of the same reasons that police can search, for example, the arrestee’s wallet without a warrant. But it’s hard to see five Justices voting in support of that rule, given the widespread skepticism that the argument met on the Court. Justice Elena Kagan was one of the most vocal opponents of such a rule, telling California Solicitor General Edward DuMont that, following his logic, an arrest for a minor offense like driving without a seatbelt would allow police to look at every single e-mail on the arrestee’s phone, along with his bank records, medical data, calendar, and GPS data. That, she suggested, “strikes me as a very different kind of world” from looking at someone’s billfold, given that “people carry their entire lives on cellphones.” Justice Antonin Scalia later echoed this idea, calling it “absurd” that police should be able to search someone’s iPhone for that kind of minor offense. Justice Anthony Kennedy, whom many often regard as a key vote on the Court, expressed concerns as well, telling Deputy U.S. Solicitor General Michael Dreeben (who argued on behalf of the federal government in both cases today) that “we are living in a new world,” in which someone arrested for a minor crime has her “whole life on [her] phone” and asking whether Dreeben could suggest some limits on the potentially broad sweep of the government’s rule.
 

Pertinacious Tom

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I heard the other day that this court session has seen more unanimous decisions than ever before. Glad to see they all agreed on this one.

I wonder whether using a stingray to track the locations and movement of a phone counts as a search?

 
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