Cellphones and the 4th Amendment

atoyot

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Dela-where?
I read the First, and didn't see a damned thing about radio, television, 4-colour offset lithography, xerography, the Internet, women being able to vote, lesbian couples getting married, corporations being "people", or allowing half-Negroes to be president.

 
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Pertinacious Tom

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I thought we had a bunch of strict constructionists here, no?

You mean like Scalia?

Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment . We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications, e.g., Reno v. American Civil Liberties Union, 521 U. S. 844, 849 (1997) , and the Fourth Amendment applies to modern forms of search, e.g., Kyllo v. United States, 533 U. S. 27, 35–36 (2001) , the Second Amendment extends, prima facie,to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.
Seems the ones making the argument that old amendments do not apply to modern tech come from the other side.

 

Pertinacious Tom

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Interesting observation on SCOTUSblog about Riley v Cali

The home is no longer the center of the 4th amendment universe.

...The Riley decision also points to a reconceptualization of searches in the digital age that may move the home from the center of the Fourth Amendment universe. As the Court explained, “Indeed, a cell phone search would typically expose to the government far more than the most exhaustive search of a house: A phone not only contains in digital form many sensitive records previously found in the home; it also contains a broad array of private information never found in a home in any form unless the phone is.”

...

There is also in the Court’s Riley opinion a subtle but significant shout-out to Justice Brandeis and his famous dissent in Olmstead, the 1928 wiretap act. In that case, Brandeis rejected the Court’s limited application of the Fourth Amendment, which found no warrant requirement for the interception of telephone communication. Brandeis argued that the Constitution must be adapted to the demand of the modern age, suggesting that “[t]he progress of science in furnishing the Government with means of espionage is not likely to stop with wiretapping.” It was not just the tapping of the telephone that concerned Justice Brandeis. He also anticipated many of the modern investigative techniques, such as the phony cellphone towers known as “Stingray” and the government’s surreptitious access to private files stored on remote cloud servers. “Ways may someday be developed by which the Government, without removing papers from secret drawers, can reproduce them in court, and by which it will be enabled to expose to a jury the most intimate occurrences of the home.”

Chief Justice Roberts paid homage to Brandeis in Riley with this excerpt, discussed in the 1886 opinion Boyd v. United States:

Our cases have recognized that the Fourth Amendment was the founding generation’s response to the reviled “general warrants” and “writs of assistance” of the colonial era, which allowed British officers to rummage through homes in an unrestrained search for evidence of criminal activity. Opposition to such searches was in fact one of the driving forces behind the Revolution itself. In 1761, the patriot James Otis delivered a speech in Boston denouncing the use of writs of assistance. A young John Adams was there, and he would later write that “[e]very man of a crowded audience appeared to me to go away, as I did, ready to take arms against writs of assistance.”
The NSA won't like the implications from this case. :ph34r:

Although the data stored on a cell phone is distinguished from physical records by quantity alone, certain types of data are also qualitatively different. An Internet search and browsing history, for example, can be found on an Internet-enabled phone and could reveal an individual’s private interests or concerns—perhaps a search for certain symptoms of disease, coupled with frequent visits to WebMD. Data on a cell phone can also reveal where a person has been. Historic location information is a standard feature on many smart phones and can reconstruct someone’s specific movements down to the minute, not only around town but also within a particular building.

This does not bode well for the government in the continued litigation over the NSA’s surveillance of Americans. In defending the NSA’s massive collection of the telephone records of all Americans, the government has argued that the collection of this metadata is “materially indistinguishable” from the collection of a single telephone number permitted by the Court in Smith v. Maryland, a case decided in the era of the rotary dial phone. Addressing the government’s claim that there is little difference between the search of cellphone data and the physical search the Court had previously allowed following an arrest, Roberts said, “That is like saying a ride on horseback is materially indistinguishable from a flight to the moon. Both are ways of getting from point A to point B, but little else justifies lumping them together.”
 

Pertinacious Tom

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Supreme Court Chief Justices are not supposed to be funny, but Roberts had a great line about losing a case 9-0 when he was a lawyer. Why 9-0?

"because there are only nine justices."

...The government's resounding defeat brings to mind one Roberts experience when he was still arguing before the court as a lawyer. After losing a case, his client asked why the vote was 9-0. "Well," answered Roberts, "because there are only nine justices."

The rebuke ought to give the Justice Department pause. "When you can't get Samuel Alito to vote with you on a police case, you've lost all sense of proportion," George Washington University law professor Jonathan Turley told me....
 

Pertinacious Tom

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Looks like some police think they have found a way around the Riley v California ruling.

...

Now comes news from the Center for Investigative Reporting that five police departments in Hampton Roads have been collecting and sharing cell-phone data. The information—shared by the departments in Hampton, Newport News, Norfolk, Chesapeake, and Suffolk—comes from subpoenas to service providers and from cell phones that have been seized in the course of an arrest.

The State Police had an opportunity to join the program, known as the Hampton Roads Telephone Analysis Sharing Network. It declined, according to the Norfolk Virginian-Pilot, “because of concerns about its legality.” The State Police worried that the program was forbidden by the Government Data Collection and Dissemination Practices Act—the same law that formed the basis for Cuccinelli’s warning against dragnet collection of license-plate data.

What’s more, a unanimous Supreme Court ruled this summer that the police must obtain a warrant to download data from a suspect’s cellphone. The Hamton Roads network participants aren’t doing that. Moreover, the departments are sharing information from the database upon request. Kelvin Wright, the police chief in Chesapeake, stresses that the requests must have a specific investigative purpose. But that’s not good enough. As a lawyer for the Virginia ACLU pointed out: Not only is a warrant necessary for the first look at the contents of a seized phone, a new warrant is needed if a second agency wants a look....
Glad the State Police could see the illegality.

Kelvin Wright should take his specific investigative purpose to a judge or shove it up his ass, but acting on it alone is not acceptable.

 

Pertinacious Tom

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There's always a workaround for those pesky constitutional rights.

The FBI figured out how to work around them.

...In June, FBI agents teamed up with a hotel employee to deliberately disconnect the Internet to rooms occupied by eight men allegedly participating in an illegal betting ring, including Paul "Wei Sing" Phua, who is allegedly a "high-ranking member" of the organized crime group 14K Triad. The agents entered the rooms with the employees help and filmed the interiors in order to build evidence against the group.

Whether Phau and seven other men are guilty is yet to be determined, and Phua's lawyer says it's beside the point; the case should be thrown out. The men didn't consent to searches of their hotel rooms, but the hotel employee allowed the FBI into the rooms anyway, a clear violation the defendants' Fourth Amendment rights, which protect people from unwarranted searches and seizures.

Furthermore, the attorney writes in a motion to suppress the fruits of the warrantless search, "It is apparent that the agents themselves harbored grave doubts about the constitutionality and legality of what they were doing, because they engaged in an extraordinary cover up." All of the information about the plot—the use of video cameras, the coordination among federal and state agencies and a hotel employee, the deliberate disabling of the Internet connection in order to enter the rooms (despite the fact the connection couldn't even really be repaired from the inside)—were all omitted when the FBI later submitted a probable cause warrant. Instead, they "falsely characterized the warrantless searches...as if the agents had responded to an actual outage."

...
Lying on the warrant application shows consciousness of guilt, an element that turns this into a criminal conspiracy to circumvent the constitution. In addition to throwing out the results of the search, charges should be filed against the liars.

 

Pertinacious Tom

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Here's a good reason that the response to "may I have your phone" should always be "get a warrant."

After recently being exposed for leaking explicit photographs of female arrestees, California Highway Patrolman Sam Harrington has resigned from the agency and charged Friday with two felonies for allegedly sharing these pictures with fellow officers.

...

Chief Avery Browne of the CHP’s Golden Gate Division released a statement asserting that the practice of secretly trading explicit cellphone photos of female suspects is isolated to the Dublin office, where Harrington worked.

...

According to court documents, despite receiving stolen photos from Harrington, Officers Robert Hazelwood and Dion Simmons would not be charged with any crimes. Another, unnamed officer has been pulled from patrol duties, the CHP said. He expected to turn himself in Monday.
Seems to me that receiving stolen documents is one crime, failing to report them is another, and both offenses should be prosecuted.

 

Vgree

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I think it makes sense officers should have to get consent or a warrant to search a phone. There is far to much peraonal data on a phone. It is much different than searching a purse or pocket.

 

Pertinacious Tom

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Encrypted passwords meet 18th century All Writs Order.

http://blogs.wsj.com/digits/2014/11/25/case-suggests-how-government-may-get-around-phone-encryption/

As noted at the end, it's a bit odd that they met in public.

It looks like the judge can send the phone to the company with an order to unlock it and their response might well be, "We do not have that ability."

True, because they designed that ability out of the phone by making the password encrypted and (they say) not keeping it in plain text form. They did that because consumers demanded it. Mostly because of the hero Snowden, but that's another thread.

Now that they have done it, consumers like it but judges are going to hate it. Prosecutors and cops too. Eventually, someone is going to suggest that companies should not be allowed to sell phones with encrypted locks. We will be back to the Clipper Chip debate again.

 

Pertinacious Tom

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Uh oh. Government officials want to protect the children again. That usually means liberty is in danger.

http://macdailynews.com/2014/11/19/doj-warns-apple-iphone-encryption-will-lead-to-a-child-dying/

“Prior to changes introduced in iOS 8, Apple had the means to pull data off of a locked phone, and according to the WSJ, the company helped police do just that when it was served with a valid court order. Under the latest iOS version, the data can be recovered only by knowing the passcode. Passcodes that are sufficiently long and complex make it infeasible for Apple or anyone else to crack,” Goodin reports. “US Attorney General Eric Holder recently said it was ‘worrisome’ that tech companies were adding default encryption to consumer electronics. Apple CEO Tim Cook recently pushed back at a WSJ conference, saying ‘”Look, if law enforcement wants something, they should go to the user and get it. It’s not for me to do that.'”
 

Vgree

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Seems reasonable that there should be a way for law enforcement to access locked data if a search warrant has been issued for the data.

I fully agree that a search warrant should be required to access someones phone because of the incredible amounts of data held on phones these day. For example you can learn much more about me by going through my phone than walking into my house, so it would seem reasonable that you would need the same level of authorization to search my phone as you do to search my house.

But if it still requires a pass code even with a warrant law enforcement would be hindered from accessing data they legally had gotten access to.

 

Pertinacious Tom

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Tim Cook thinks that is not Apple's problem, but customer preferences are. Encrypted passwords appeal to customers for some reason.

I know that the government serves tech companies with warrants that are accompanied by gag orders. Unless you are the subject of a sneak and peek search (another topic) you will know if your home has been searched. Similarly, you should know if your phone has been searched. If you are the only one who knows the password, you will know. If Apple knows it, you might not.

 

slatfatf

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Seems reasonable that there should be a way for law enforcement to access locked data if a search warrant has been issued for the data.

I fully agree that a search warrant should be required to access someones phone because of the incredible amounts of data held on phones these day. For example you can learn much more about me by going through my phone than walking into my house, so it would seem reasonable that you would need the same level of authorization to search my phone as you do to search my house.

But if it still requires a pass code even with a warrant law enforcement would be hindered from accessing data they legally had gotten access to.
I don't agree that it is reasonable to provide a backdoor for LE to access data with or without a search warrant. It would strike me as exceedingly unreasonable. Telling folks how they are allowed to communicate or lock up there data or forcing folks to leave data less secure seems like a really un-American thing to do. What you are suggesting is a lot like requiring folks to leave a copy of the keys to their house with the police or some third party to make it easier for the govt to gain access to their house should they want to. With or without a warrant, it seems very wrong to me that we would ever require people to leave a copy of their keys with the govt or someone else.

 
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