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DOJ Whines That A Warrant To Search A Mobile Phone Makes It More Difficult To Catch Criminals

from the amending-the-Fourth-Amendment dept

The US government has entered its reply brief in the US vs. Wurie case and its argument in favor of warrantless searches of arrestees' cell phones contains some truly terrible suppositions. Here's a brief recap of the situation in this case:

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.

The defendant was convicted, but on appeal he argued that accessing the information on his cellphone without a warrant violated his Fourth Amendment rights. Earlier this year, the First Circuit Court of Appeals accepted the man's argument, ruling that the police should have gotten a warrant before accessing any information on the man's phone.
As was noted by Orin Kerr at the Volokh Conspiracy, a lot has changed since 2007. The phone the police searched seven years ago was a grey flip phone with limited capabilities. Unfortunately, the Court is using this case to set precedent for a nation full of smartphones, which contain considerably more data and are roughly the equivalent of a person's home computer, rather than the address book the government refers to in its arguments.

The government agrees that times are changing but counterintuitively argues that only law enforcement is being negatively affected by this. Every argument in favor of warrantless searches contains some sort of lamentation about how tech-savvy criminals will be able to cover up or destroy evidence contained on their phones before the police can crack open these new-fangled address books and copy everything down.
[T]he Founding officers have conducted full evidentiary searches of individuals lawfully arrested on probable cause to find evidence of the crime of arrest, including the examination of objects, containers, and written material; (ii) that in an unbroken series of decisions from 1914 to 2013, this Court has recognized that this historical search authority applies categorically; and (iii) that if an officer does not search an unlocked cell phone as soon as she finds it, a significant risk exists that the police will never be able to recover evidence contained on the phone.
This speedy dismantling of the Fourth Amendment pursuant to law enforcement's desire to secure is only the preamble. As the reply brief rolls on, the government makes even more questionable assertions that view smartphones and technological advances as little more than escape vehicles for alleged felons. (h/t to Hanni Fakoury for pointing this part out.)
[S]earching an arrestee's cell phone immediately upon arrest is often critical to protecting evidence against concealment in a locked or encrypted phone or remote destruction.The numerous party and amicus briefs in these cases have not seriously undermined that fundamental practical point. Although the briefs identify various techniques to prevent the remote-wiping problem (none of which is close to perfect), they barely address the principal problem that the government identified: automatic passcode-locking and encryption.
The government argues that impartial technological advancements somehow favor criminals. As it sees it, the path to the recovery of evidence should not be slowed by encryption or wiping or even the minimal effort needed to obtain a warrant. The police are presented as forever behind the curve, despite evidence otherwise. Without a doubt, there's an ongoing arms race between deletion technology and recovery technology, but the gap between the two isn't nearly as large as the government portrays it.

But what really deserves attention here is the government's antipathy towards encryption and other protective technology. Together with the paragraph above, the government argues that any smartphone with the potential to be encrypted/wiped should automatically be relieved of warrant requirements. Encryption and wiping technology are inherently evil in the government's eyes.
But even if amici were correct in their premise that threats from third parties cannot justify the search of a cell phone incident to arrest, they ignore the principal justification in the government's opening brief—the threat of passcode-locking and encryption—as well as newer "geofencing” technologies that will enable individuals to preset their phones to automatically wipe in certain circumstances. Those tactics are not the actions of third parties, but rather automatic functions that an arrestee—potentially with police investigation in mind—can program into his phone.
Criminals might use these methods. That's a given. But what about anyone worried about their phone being stolen, especially considering the wealth of information stored on it? Does the government plan to take a stance against law enforcement's push for cell phone "kill switches?" This, too, could result in law enforcement being deprived of the opportunity to browse a person's smartphone while they sit in a holding cell awaiting booking or arraignment.

But it's the underlying assertion that such technology would be deployed mostly by criminals that's the most troubling. It's no secret government investigative and security agencies don't care for encryption. The NSA holds onto encrypted data "just in case," under the guise of counterterrorism. This argument puts non-criminal citizens in a unwelcome position: the presumption of hidden criminal activity whenever a police officer encounters an encrypted phone.

What's equally as worrying is the government's suggested remedies. The government brushes aside civil liberties concerns and points out that wronged citizens have plenty of recourse... provided they're willing to be arrested, charged, jailed until their court date and successfully argue their rights were violated in front of a judge.

The government first sets up the "remedies" by suggesting law enforcement will have to develop steps to ensure they're not getting more than they're looking for and that they're not intercepting communications while in possession of the phone. It suggests moving the phone to "airplane mode" before searching and encouraging officials to craft guidelines to address privacy issues. The nudge towards belatedly addressing constitutional issues is backhanded and backwards, especially considering law enforcement's usual attitude towards these considerations: protocols are only developed if and when public outcry reaches unacceptable levels.

The latter suggestion -- suppression of evidence -- places a delusional amount of faith in the justice system. Even worse, it places the burden on the arrested to ensure law enforcement follows its own rules.
Ultimately, law enforcement agencies will need to develop protocols to address that issue, and defendants will be able to enforce the limitation through suppression motions. No information indicates that agencies are not up to that task.
"No information," eh? There's plenty of evidence to the contrary.

Police the police at your own expense while under the threat of imprisonment. Yeah, that should go just fine.

The government wants a warrant-free ride for its law enforcement officers, who are apparently forever behind the tech curve. The argument against warrants doesn't get much more ridiculous than the following.
Respondent and his amici have even less to say about a scope-limited approach, in which officers would be permitted to search cell phones incident to arrest only to the extent reasonably necessary to serve the legitimate law-enforcement interests of finding evidence of the offense of arrest, identifying the arrestee, and ensuring officer safety. Under that approach, courts would remain vigilant against uninhibited "exploratory" searches that do not serve those interests.
Once again, your civil liberties can be argued... after the fact... in court.
Under a scope-limited approach, an officer could not peruse every area of a phone on the off chance that evidence of some crime might be found there. Rather, the officer would be required to articulate a specific reason to believe that evidence relevant to the offense of arrest, officer safety, or arrestee identity would be found in each area of the phone she searched.
Specific reasons that evidence might be relevant sounds a whole lot like the sort of things that would be present on a warrant request. Except in this case, the officer would have the luxury of arguing that after searching the phone. It's like asking for warrant after tossing the house. But the government's not done. It goes farther and attempts to portray warrants as the actual enemy of the Fourth Amendment.
If respondent's rule is adopted, at the time a magistrate issues a warrant, neither officers nor the magistrate will know what files or applications the phone contains. A typical warrant would identify information sought in the search (e.g., drug ledgers, customer lists, financial records, and evidence of a suspect's use or ownership). Officers would then necessarily need to conduct at least cursory searches of relevant areas of the phone to determine whether they might contain the object of the search—a process indistinguishable from the scope-limited approach the United States has suggested. A warrant-based approach would thus not limit the scope of any ultimate search, as compared to the scope-limited approach described above.
In the government's comparison, both are equally intrusive, but only one keeps cops from doing their job.
Rather, the primary function of a warrant requirement would be to preclude officers from searching a phone when they have reason to believe that it contains evidence of crime, but cannot establish the higher standard of probable cause—or cannot obtain a warrant before a phone locks and becomes inaccessible.
That's odd infuriating. I could have sworn warrant requirements were in place to protect citizens' Fourth Amendment rights, not to somehow screw cops out of diving into someone's cell phone just because they happened to be carrying it on their person. The Fourth Amendment protections are there for a reason -- for this exact reason: to prevent unreasonable searches.

Replace anything in that sentence and see if it still looks like the sort of thing the government of a free nation should be arguing.
Rather, the primary function of a warrant requirement would be to preclude officers from searching a RESIDENCE when they have reason to believe it contains evidence of a crime, but cannot establish a higher standard of probable cause -- or cannot obtain a warrant before the DOOR CLOSES.
The government views the Fourth Amendment as little more than a criminal's best friend. This is the entity that is supposed to protect civil liberties, not argue them away as pesky impediments to the pursuit of bad guys.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
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    Jay (profile), Apr 24th, 2014 @ 12:59pm

    "Rights for me, and not for thee." Really, it's amazing the sort of double-think at work here. It's actually awe-inspiring.

     

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    madasahatter (profile), Apr 24th, 2014 @ 1:00pm

    Possession

    If the police confiscated any device during an arrest they have plenty of time to get a warrant. The defendant does not have access to the device while it is police possession. Additionally, deleting a file does not normally delete the data only the file system references to the file. So with readily available file recovery tools, it is very likely the data can be recovered. I know there are tools that will securely delete the information but I suspect most criminals like most users are not tech savvy enough to install and properly use these tools.

     

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    Anonymous Coward, Apr 24th, 2014 @ 1:00pm

    The police have omitted that they could subpoena the phone company to obtain the numbers dialed by or calling the phone. The want to be able to go fishing if they have any 'suspicion' that a person is up to no good.

     

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    Anonymous Coward, Apr 24th, 2014 @ 1:10pm

    In the end...

    The police just want to tell you what to do, how to do it, and when to do, regardless of the law.

    I would rather see criminals go free than for an innocent person (like that woman tackled by the motorcycle pig) to be harassed by a cop, or put in jail for stupid shit.

     

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    kenichi tanaka (profile), Apr 24th, 2014 @ 1:20pm

    The DOJ is hilarious. But, I guess I can see their point. The Fourth Amendment really does make it difficult to catch criminals. Better yet, we haven't had constitutional rights ever since Congress passed "The Patriot Act" and the government having the FISA courts in their own back pocket, rubber-stamping every warrant and every request they make to the court.

    We don't like in a free society, we live in a repressive society where you don't get any rights and the only rights you are granted are the ones the government decides to let you keep.

     

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    zip, Apr 24th, 2014 @ 1:20pm

    NSA

    Since the NSA logs everyone's phone records, would the police technically need a warrant to get something from the NSA or other government agency that keeps files on people?

     

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    Baldaur Regis (profile), Apr 24th, 2014 @ 1:20pm

    The DOJ gets my "Funny" vote for their brief. And in a few years, when the Internet Of Things really takes off, will the DOJ argue for expansion of these assertions to cover any electronic device? "Cuff the fridge and haul it to the station. There just might be tasty, tasty info in there."

    Also note the brief continually refers to the instant devices as 'cell phones', not 'smartphones'. The language is either a brilliant sleight of hand in obfuscating modern phones' capabilities, or proof that the government is in fact way behind the curve.

     

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    John Fenderson (profile), Apr 24th, 2014 @ 1:21pm

    Re:

    This.

    What the police are actually complaining about is that the loophole they found that lets them avoid getting warrants might get closed. Which is fair, since it should never have been there to begin with.

     

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    Anonymous Coward, Apr 24th, 2014 @ 1:22pm

    More difficult to...

    Catch criminals... but also more difficult to violate citizens' rights. Hmm - let me think, what's more important here.

     

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    Anonymous Coward, Apr 24th, 2014 @ 1:24pm

    So, apparently not wanting to speak with a police officer is reason enough to be assaulted and arrested and as soon as you are arrested your phone and home can be searched for evidence of any criminal activity.

     

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    Anonymous Anonymous Coward, Apr 24th, 2014 @ 1:27pm

    Induction ala DoJ

    DoJ newbie to mentor:

    Newbie: But won't that violate the constitution?

    Mentor: Constitution? Constitution? Oh, I remember what you talking about. We did the responsible thing, following EPA advice and recycled that old piece of parchment. It was polluting due process. We actually had it turned into toilet paper and sent it over to the supreme court a couple of decades ago.

    Newbie: Oh...I mean, I had no idea. I wondered why it never come up in the interviews.

     

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    Anonymous Coward, Apr 24th, 2014 @ 1:28pm

    Re: Possession

    Playing devil's advocate: an encrypted phone (Android can encrypt your whole phone, so recovery tools are worthless) with a timer program set to reboot the phone (which wipes the password from its memory) in six hours, unless the phone is unlocked in the meantime. The only way to recover after the reboot is to enter the encryption passphrase.

    Very easy to do (the encryption is built-in to Android, the timer program would be simple to write), very hard to bypass (you have six hours to hack into the phone before it forgets the key, since it's full disk encryption deleted data is protected too).

     

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    Chris Brand, Apr 24th, 2014 @ 1:32pm

    Exactly what is a warrant ?

    "Rather, the primary function of a warrant requirement would be to preclude officers from searching a phone when they have reason to believe that it contains evidence of crime, but cannot establish the higher standard of probable cause"

    Isn't that pretty much the definition of (and purpose for) a warrant ?

    You don't get to search people just because you think they're up to something - you have the get a neutral third party to agree that you're probably right.

     

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    mcinsand, Apr 24th, 2014 @ 1:37pm

    an analogy

    Having to get a warrant before a search makes criminal-catching more difficult in the same way that not robbing a bank makes getting rich more difficult.

     

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    Anonymous Coward, Apr 24th, 2014 @ 1:50pm

    "appeared to be selling crack cocaine from his car. "

    Wait right there!

    Appeared to whom?
    Appeared how?
    Where is the proof?


    BS from the outset. Just like "smell" of marijuana.

    Defense should made them sweat by forcing to just establish proof of foundation of their case, before going on the merits. Looks to me like statement "appeared [to be] crack cocaine" cannot fly to far in court of law.

     

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    Anonymous Coward, Apr 24th, 2014 @ 2:10pm

    Going after criminals is supposed to be a job. By definition a job is something you work at; not something given to you. Our enforcement parties now want criminals to come to them with evidence and confess or it's too much work apparently.

    This crap is slowly coming to a head. It will probably take a senator or representative's precious caught this way to get it actually moving but that will happen. Not if but rather when.

    I like many other citizens want to see our rights enforced, not taken away. This government has become a monster needing the constant feeding of the taxpayers dime. It has become huge enough that even that isn't keeping it fed.

    The day is coming when enough is enough. I don't know what will set it off nor in what form it will take. Looking around our surroundings it's pretty obvious it can not continue as it isn't self-sustaining.

     

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    No Tell-n What (profile), Apr 24th, 2014 @ 2:21pm

    Fishing - No no no

    The[y] want to be able to go fishing if they have any 'suspicion' that a person is up to no good.

    They just want to go fishing. Period. ".. up to no good" is simply an excuse.

     

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    Anonymous Coward, Apr 24th, 2014 @ 2:28pm

    Your honor, the Constitution also makes our jobs "harder" - can't we just ignore it exists?

     

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    John Fenderson (profile), Apr 24th, 2014 @ 2:28pm

    Re: Re: Possession

    Someone sophisticated enough to do that would likely do it in a more effective way: rig the phone so that as soon as anyone plugs something into the USB port without entering a passcode first will cause the phone to be wiped. This is actually pretty easy to do with Tasker + System Settings.

    My phone doesn't go quite that far, but I do something very similar. If the phone unlock fails too many times, or if someone plugs anything into the USB port without either being in range of my home's WiFi or entering a passcode into the Dialer app causes the phone to take a picture, send it along with the last known location of the phone to my email address, then locks the phone down. Wiping the phone would actually be an easier thing to accomplish.

     

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    Keroberos (profile), Apr 24th, 2014 @ 3:05pm

    To truly see how ridiculous this is replace the word "phone" with "house" and see how it looks.
    Rather, the primary function of a warrant requirement would be to preclude officers from searching a house when they have reason to believe that it contains evidence of crime, but cannot establish the higher standard of probable cause—or cannot obtain a warrant before a house becomes inaccessible.
    Becomes rather chilling, doesn't it?

    Of course, I always thought that the Fourth Amendment was created specifically to make the police's job harder.

    But you know, they have my sympathy. It must be really hard to get a police state started up with all those pesky rules in the way.

     

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  21.  
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    Anonymous Coward, Apr 24th, 2014 @ 3:13pm

    Warrants in general makes the job of law enforcement less than convenient. They are a constitutional protection to prevent abuse.

    It's a feature, not a bug.

     

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  22.  
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    Applesauce, Apr 24th, 2014 @ 3:24pm

    Government's job is supposed to be hard.

    The Constitution and the Bill of Rights are designed to make the job of the police and the government difficult. It was the original intention of our founding documents to limit the power of the state. The entire purpose was to protect the rights of the people from that power.

    If the government is complaining that it makes their job difficult, the proper response is good: The system is (or then would be) working as designed.

     

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  23.  
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    Anonymous Coward, Apr 24th, 2014 @ 5:50pm

    Re:

    Your Honor, asking questions first is too hard. Let's shoot everyone first; they're probably guilty anyway!

     

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    Anonymous Coward, Apr 24th, 2014 @ 6:02pm

    So the DOJ is stating they don't recognize the US Constitution, or the civil rights of US citizens? I had a hard time reading all above statements in this article, because the wording seemed long winded and overly complex.

    I suppose if you're trying to strip away the civil liberties of citizens, using long winded and hard to understand wording would be the way to go about it. That way citizens are confused and can't understand what's going on.

     

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    Greevar (profile), Apr 24th, 2014 @ 6:40pm

    Re: Government's job is supposed to be hard.

    This was my immediate thought when I first read the title.

     

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    mudshark (profile), Apr 24th, 2014 @ 9:47pm

    smart criminals never use smart phones

    All my criminal associates use several cheap "burner" phones coupled with multiple anonymous accounts on Google Voice. Just keep rotating the Google Voice numbers and phones for a week and then toss out one phone and get another one. Same for numbers. Can you say "reasonable doubt"?

     

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    Greevar (profile), Apr 24th, 2014 @ 10:19pm

    Don't store any sensitive information on your phone.

    Put it in secure cloud storage. They can't get data that isn't on your phone.

     

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    Anonymous Coward, Apr 24th, 2014 @ 10:58pm

    pennshutthefuckup.gif

    (aimed at the Injustice Gang in DC)

     

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    Ninja (profile), Apr 25th, 2014 @ 2:57am

    The government wants a warrant-free ride for its law enforcement officers, who are apparently forever behind the tech curve.

    Why call it "law enforcement" when they think they are the law above everything?

     

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    G Thompson (profile), Apr 25th, 2014 @ 3:17am

    Re: Re: Re: Possession

    and any forensic examination of the phone doesn't care either way whether you are using tasker (easy to circumvent) or something specifically written into your code via the framework or even within build.prop. Even plugging into USB and wiping has to rely on the phone sensing the USB port plugged in.. that's easy to control.

    Without going into specifics (I wont even if asked) First thing I check is whether phone is rooted or not and particulars (context) of the case and owner. Also I clone SD cards (internal & external), SIM, etc before any actual volatile analysis is even thought to be attempted.

    I know of phones that have been wiped externally, but they are outlier cases and things like faraday cages weren't used.

    Trust me if we want to see what is on your phone (iPhones are more easier than Androids/Win actually) we will see it but ONLY after having an actual court order (be it warrant or subpoena) to verify that the analysis can occur. Well that's in my country anyway, what you do in the USA in regards to warrants (or lack thereof) already would be highly problematic at minimum here and illegal at worst.

     

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    Jeremy Lyman (profile), Apr 25th, 2014 @ 4:25am

    Hang on a second...

    The government argues that any smartphone with the potential to be encrypted/wiped should automatically be relieved of warrant requirements. Encryption and wiping technology are inherently evil in the government's eyes.
    Is this the same government that wants to mandate remote-wipe on our phones?

     

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    Jeremy Lyman (profile), Apr 25th, 2014 @ 4:32am

    Re: NSA

    No, they need a warrant to get the info from the phone companies. Which is why the NSA's collection is illegal.

     

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    Anonymous Coward, Apr 25th, 2014 @ 5:50am

    What I take away from this is "law enforcement is hard...and we need to make it less difficult for the officers."

    NO ONE SAID IT WAS SUPPOSED TO BE EASY!!! If you can't handle doing things the RIGHT way, then find another line of work! I'm so sick of hearing about all the "challenges" law enforcement faces with respect to technology.
    The "hoops" they have to jump through are there to PROTECT THE REST OF US FROM THEM!

     

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    John Fenderson (profile), Apr 25th, 2014 @ 8:39am

    Re: Re: Re: Re: Possession

    The main issue with phones right now is not really sophisticated analysis. It's that cops can and do just take your phone and plug it into a device to copy the contents in the field, while you're being detained. While the measures I take are geared more towards protecting against thieves than cops, they would be effective with the cops duping your phone during a stop.

    You're right, once the phone goes to an actual forensics unit, all bets are off. However, that's not the sort of thing that is going to be done unless you are particularly interesting to the cops, so there's less of a risk of it.

     

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    G Thompson (profile), Apr 25th, 2014 @ 9:55am

    Re: Re: Re: Re: Re: Possession

    Here any phone found on a defendant if they are arrested and held for interview is classified as personal property and cannot be looked at in any way unless a warrant for that item is obtained first. This is even more so if they are then charged and placed on remand ( bail not granted) when that phone is then placed in high secured storage and only a court can order anyone to access it (not even defendant can).

    If a phone etc is found in a vehicle or near where crime committed (or defendant arrested) then it becomes part of evidence structures and has to be logged in as evidence (or as property as above). Field analysis by standard LEO's is NEVER done on phones unless a warrant is obtained at the time (4hrs is max for detention before release or charge so ample time to obtain faxed warrant if deemed appropriate by a magistrate). So therefore as I said your lack of due process and removal of freedoms we currently enjoy is quite disturbing to us, especially when the USofA is touted as "the land of the free"

     

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  36.  
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    Anonymous Coward, Apr 25th, 2014 @ 2:58pm

    Alice More: Arrest him!
    More: Why, what has he done?
    Margaret More: He's bad!
    More: There is no law against that.
    Will Roper: There is! God's law!
    More: Then God can arrest him.
    Alice: While you talk, he's gone!
    More: And go he should, if he was the Devil himself, until he broke the law!
    Roper: So now you'd give the Devil benefit of law!
    More: Yes. What would you do? Cut a great road through the law to get after the Devil?
    Roper: I'd cut down every law in England to do that!
    More: Oh? And when the last law was down, and the Devil turned 'round on you, where would you hide, Roper, the laws all being flat? This country's planted thick with laws from coast to coast– man's laws, not God's– and if you cut them down—and you're just the man to do it—do you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake.

     

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    GEMont (profile), Apr 25th, 2014 @ 4:25pm

    The Anti-Constitution of The United States of Bank America

    "But it's the underlying assertion that such technology would be deployed mostly by criminals that's the most troubling."

    Well unlike all you folks in the Adversary Class - US citizens - the Fed and its agencies work under the secret legal presumption of "Guilty Until Proven Not Guilty This Time".

    Its hardly their fault that you citizen-adversaries still believe in the old pre-9/11 legal framework of Innocent till proven guilty, just because you don't have access to the post-9/11 secret legal decisions made by the Fed after the Constitution was abolished by the Bush Dynasty.

    You could, after all, easily become a Federal Employee and learn all about the new Anti-Constitutional laws now being used by the Fed against citizens of the USA, but no, you didn't do that, did you. So its your own fault. So stop whining already, and apply for a federal Government job.

    After all, you do want to be on the winning side don't you.

    For instance, you would learn almost immediately, that under the new secret Federal Anti-Constitution Laws, there is no such classification as "Innocent".

     

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    Dave Olson, Apr 25th, 2014 @ 7:05pm

    What's the problem?

    I fail to see what the big deal is. According to a certain political bloc, the Founders couldn't have foreseen current weaponry, therefore the 2nd Amendment doesn't apply to our modern world. Therefore, ACCORDING TO THEIR OWN PHILOSOPHY, since the founders could not have foreseen smart phones, the 4th Amendment doesn't apply to our modern world either.

    See? Liberalism doesn't have to be consistent, it just has to fit the moment.

     

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  39.  
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    Anonymous Coward, Apr 27th, 2014 @ 1:00pm

    Easy way to catch criminals

    They should know there is a zero-effort way to catch criminals. Start arresting themselves.

     

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  40.  
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    john noonan, Apr 27th, 2014 @ 3:28pm

    warrantless searches

    Searching someone's phone or mobile computing device is no different then going into their home and rifling their desk drawers. I do not care of it is a criminal or not it deserves a warrant unless there is just cause as crime was stopped in process.

     

    reply to this | link to this | view in thread ]

  41.  
    identicon
    John Mullen, Apr 27th, 2014 @ 4:08pm

    Re: The Anti-Constitution of The United States of Bank America

    "The Fed" in normal American English refers to the Federal Reserve. I think you mean the "Federal government" which is normally referred to simply as "the government" (

     

    reply to this | link to this | view in thread ]


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