Government Presents Its Arguments For Warrantless Cellphone Searches, Thinks Officer Discretion Will Prevent Abuse

from the terrible-arguments-made-terribly dept

The other Supreme Court case dealing with warrantless cell phone searches heard oral arguments this week, with some intermingling from a lawyer presenting the US government's side in a related case (US v. Wurie). We recently covered the government's arguments for warrantless searches in US v. Wurie, a case dealing with outdated technology -- a flip phone. This case (Riley v. California) is from 2013 and deals with a smartphone, one that received a much deeper search by police officers.

In both cases, no one sought a warrant. The government argued in the Wurie case that a warrant "served no purpose" but to allow the locked-up criminal to erase evidence from a phone in police possession. Lots of technological speculation was presented, suggesting that every small-time crook would wipe or encrypt their phone to prevent the recovery of evidence. The government presented a tech arms race where law enforcement is always losing as the impetus for throwing the Fourth Amendment out the precinct window.

Strangely, in both cases, the government has made the claim that the officers involved already had enough probable cause to secure a warrant, but they simply chose not to. Jeffrey Fisher, arguing for Riley, points out that this is no excuse.

This Court has said time and again that the mere fact the police could have gotten a warrant but didn't does not excuse a Fourth Amendment violation.
If this "we could have gotten a warrant" excuse seems familiar, it's because it's been used far too often to justify warrantless searches. Earlier this year, the Tallahassee Police Dept., in its defense of its privacy-violating Stingray deployment, told a judge that it could have secured a warrant (but didn't) with all the probable cause it had in its possession, a statement that prompted this outraged response:
When the government attorney tried to argue in court that the police had planned to obtain a warrant to enter the apartment, one of the judges interrupted.

"No, no, no, no, no," he said. "I think this record makes it very clear they were not going to get a search warrant because they had never gotten a search warrant for this technology."

His fellow judge then interjected loudly, "Two-hundred times they have not."
So, there's the government antipathy towards warrants on full display. But the warrant process does something very important: it forces the police to justify the search, narrow the scope and put it all in front of a (supposed) neutral party -- a magistrate judge. In actuality, it's usually a very speedy process, but during these arguments, the government acts like it's a horribly laborious imposition.

In Riley's case, the lack of warrant requirement allowed the police to browse Riley's phone until it found something incriminating.
He [detective] said, at JA­11, we looked at a whole lot of stuff on the phone and that's just what, in his words, "caught his eye."
As Fisher points out, the government's idea of protecting someone's rights involves searching first and allowing questions to be asked later -- a complete inversion of how the Fourth Amendment is supposed to work.
What the government says is let the officer look and then have a back­end hearing where you just suppress all the stuff that he wasn't supposed to look at once you apply particularity requirements.
This attitude (also on display in the Wurie response) presumes people will make it to that point, rather than taking a plea or simply not having the resources to fight a suppression battle in court. This places the onus on the wrong party and puts citizens in the terrible position of policing law enforcement at their own expense.

As the justices point out during their discussion with Fisher, there are still exceptions available to police even if a warrant requirement were put in place. It's a big loophole but one that should be considered necessarily rare (which it probably won't be in practice): exigent circumstances.

During this discussion, an interesting point emerged. The state itself reached the same conclusion as Riley's legal team: there's no useful analogue from past cases that offers comparative circumstances for today's smartphones.
[W]e have an exploratory search where not even the State has contended the amount of information looked at is equivalent to what somebody could have carried around in the old days.
The government's favorite apples-to-oranges comparison -- the diary -- is even worse than simply saying the phone is nothing more than an address book with some pictures between the pages. Not only is it a relatively worthless comparison, but even the few originating cases are outliers. For the government to consider a phone to be a diary, it has to ignore huge amounts of context before beating the argument to fit and painting it to match, as Fisher points out.
The reason I think that you don't find diary cases when you look for them is because people hardly ever carry a diary outside the home with them. It was kept in a private drawer in the bedroom or wherever it might be kept, and in the highly, highly unusual circumstance where somebody did, you might have a hard case.

This… is the opposite world. The modern reality of smartphones is that it is an indispensable item for everyday life of a modern professional and, indeed, most anyone. You can't leave the house without it and be ­--­ consider yourself to be responsible and safe. And so you take ­­ to take a world where the police might try to say, we can get the stray diary because of the importance of the categorical rule under Robinson and try to apply that into a world where everybody has everything with them at all times…
Edward Dupont, representing California, advances a familiar government argument -- if it doesn't violate in a singular instance, then expansive searches pertaining to the same sort of subject matter doesn't suddenly result in a Fourth Amendment violation. (This has been deployed in defense of the NSA's surveillance programs.)
The theory, even if I'm carrying only five photographs or if I'm carrying two letters as was the case in the Chiagles case, for instance, that Judge Cardozo decided in the '20s, they are likely to be very personal, very private photographs. So I'm not sure that the expansion of volume increases the invasion of privacy.
On one hand, multiplication by zero. On the other hand, smartphones aren't just ostentatious data generators -- they have practical uses as well. To quote a decision from the Massachusetts Supreme Court which ruled warrantless access to cellphone GPS data was unconstitutional:
"People buy [cellular telephones] to communicate with others, to use the Internet, and for a growing number of other reasons. But no one buys a [cellular telephone] to share detailed information about their whereabouts with the police"
Justice Kagan asks if any arrest (a seatbelt violation in this instance) should allow police to search cell phones. Dumont calls that a "marginal case" and not relevant to the discussion. Kagan disagrees:
Your argument and the Solicitor General's principal argument applies to any arrest. And it applies to everything on a cell phone. People carry their entire lives on cell phones. That's not a marginal case. That's the world we live in, isn't it?
Dumont then argues that this particular case doesn't deal with an "entire life" on a cellphone, so this potentiality shouldn't be considered. Fair enough, in terms of particulars, but this is the Supreme Court -- the highest court in the land. What it decides becomes standard operating procedure for law enforcement from this point on. Dumont seems to think he can conveniently bury his head in this case and ignore the numerous implications it raises. Justice Ginsburg makes this point.
The Court is to make a rule not for this particular case, but for this category of cases. And I think what Justice Kagan pointed out is very nervous concern. [...] It's your rule, then, that the cell phone is fair game no matter what the crime, no matter how relatively unimportant the crime. Is it all misdemeanors, all misdemeanors and that opens the world to the police.
Dumont then claims that this case is "different" because it involved a "violent" suspect, rather than a lesser form of criminal. Justice Kennedy smacks that argument into the stands.
MR. DUMONT: I think you need to look at the generality of cases. And in the generality of cases, first of all, you will not be dealing with minor crimes. You'll be dealing with serious crimes. And second, you'll be dealing with police who are --­­ undo their job by booking ­­--

JUSTICE KENNEDY: Are you saying we're just resting on the discretion of the officer? Because if that's so, then that leads to the next question. Well, if that's so, then we'll get a warrant.
After that, Dumont tries to make the point that sometimes there's not going to be an opportunity to get a warrant, which apparently he feels is problematic enough that any warrant requirement should be eliminated. Kennedy reminds Dumont that he's wandered back into "exigent circumstances" territory, an option that will still be available even if the Court decides warrants are necessary.

Justice Breyer tries to nail down where the government actually stands on the warrant issue.
So there are three possibilities: Possibility one, smartphone, no, get a warrant, unless exigent circumstances. Possibility two, yes, it's just like a piece of paper that you find in his pocket. Or possibility three, sometimes yes, sometimes no. All right, which of those three is yours?
Dumont isn't willing to go quite as far as the government did in its filing in the Wurie case (warrants just prevent cops from catching bad guys) -- at least not while speaking directly to the justices.
[M]y in­between rule with the explanation is that for information that is of the same sort that police have always been able to seize from the person, that includes diaries, letters, all other kinds of evidence, purely evidentiary, photographs, address books, for evidence of that same sort, the same rule should apply.
That's not an answer, and the Justice Breyer knows it. The government is again arguing for LEO discretion, which isn't a place any court can (or should) draw the line.
Your rule is sometimes. So I say: Sometimes; what's that? And you say if it is the kind of thing that the police could have searched for if it wasn't on the computer, then they can search for it on the computer. Now, since they can search for everything in your pockets before when it isn't the computer, then why isn't yours everything? [...]

So I guess what you're saying is I thought it was category two, sometimes, but really it's category three, always.*
It certainly appears the government has exactly that in mind -- no warrant requirement. Ever. The lawyer claims "sometimes," but refuses to delineate further than "we'll know it when we see it." Here's Dumont again, attempting to craft the haziest bright line ever by arguing that simply being arrested -- never mind actually charged -- removes nearly every expectation of privacy.
[T]he fact of the arrest necessarily and legitimately largely abates the privacy interest of the individual and his person and anything he or she has chosen to carry on the person.
Now, modern technology makes it possible for people to choose to carry a great deal of information. But that doesn't change the fact that the reasonable expectation, if a person is subject to custodial arrest, is that the police will search the person and look at things that they find…
Justice Kagan in response:
In other words, one has to keep one's cell phone at home to have an expectation of privacy in it?
Dumont digs in, and the argument gets even worse. Now, he claims citizens need to expect that their cell phones are, for all intents and purposes, open books for law enforcement to avail itself of. If they don't like that "fact," they can just not use a cell phone.
No, we're not saying that at all. But what we are saying is that people do make choices, and those choices have consequences. And the consequence of carrying things on your person has always been that if you are arrested, the police will be able to examine that to see if it is evidence of crime.
This makes no more sense than the government's argument that a no-fly list doesn't violate anyone's rights because flying is a "convenience." The reality of the situation is that a cell phone -- much like air travel in a country of this size -- isn't really a choice. It's a necessity. But the government acts as though people are complaining about the downside of pure luxuries.

Michael Dreeben, also arguing for the government, thinks the reduction of privacy as the result of an arrest makes this all acceptable. But Justice Ginsburg wonders why, if the person is being detained, is it so impossible to just go and get a warrant?
But, Mr. Dreeben, if the --­­ the understanding was, when there's time, get a warrant. So here, you can seize the phone and you can secure the phone, and you could go to a magistrate and within an hour get permission to search. But what is the reason for cutting out the magistrate here?
In response, Dreeben presents the same hypothetical -- that a criminal will wipe the phone during the hour or so it takes to get a warrant. Dreeben presents only anecdotal evidence from the FBI and other stuff he "heard" from other state police in support of this theory that a majority of criminals have implemented wiping technology.

Justice Breyer:
[Y[ou're saying now we should allow searches of all cell phones because there might be a technology that hasn't yet in fact been used in any of the States that have this rule.
After a lot of arguing over whether the "no warrant" rule would apply to arrests for non-serious criminal activity (the government says it won't but obviously can't really make that promise), Dreeben says this lack of Fourth Amendment protection is the best thing for "society."
At that moment society's interests are at their apogee in locating evidence relating to the crime of arrest and apprehending related suspects, and the suspect has a highly reduced privacy interest.
In the interest of simplification and the establishment of a bright line, the "always obtain a warrant" would appear to be the correct decision, one that still provides Fourth Amendment protections. The government's fear of wiped phones and encryption seems to be largely based on speculation and anecdotes, rather than any documented evidence. There are ways to prevent remote wiping, but the government considers those to be too burdensome to entertain seriously.

The warrant process will always be accompanied by the exigent circumstances loophole, which would allow police to weigh officer and public safety as factors for speedier access. But in most cases -- and most certainly in this one -- there is plenty of time to obtain a warrant. In this particular case, the disputed search didn't occur until two hours after the arrest.

But the government doesn't want a bright line. What it wants is instant access and it expects the public to be perfectly fine with the decision resting in the hands of "officer discretion." But it's extremely doubtful the public has much faith in officer discretion at this point, and the government's own actions have indicated that law enforcement agencies tend to perform a lot of fishing expeditions simply because standing decisions allow them to. Reduced privacy expectations in all things has been the government motto -- it makes NSA surveillance "legal" and allows investigators to dig around in people's electronics.

The justices don't seem to be very moved by the government's assertions. There was a lot of pushing back, which is a good sign. The downside is that these arguments really made no headway towards a more thoughtful approach to modern technology, even with the justices throwing around terms like "Facebook" and "Fitbit."


Reader Comments (rss)

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    Geno0wl (profile), Apr 30th, 2014 @ 9:13am

    Remove a layer of oversight in a system that already abused with the current level of oversight?
    What could possibly go wrong!

     

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      mcinsand, Apr 30th, 2014 @ 10:05am

      Aaron Schwartz and Richard Jewel could tell you

      I wish Mr. Schwartz and Jewel were still here, so they could give their testimonies first-hand as to what happens when law enforcement runs amok over citizens' rights.

       

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    Josh (profile), Apr 30th, 2014 @ 9:24am

    officer question

    What training do police get when they are going to search phones so they don't disturb the data? With a computer, you make a copy of the drive so you don't alter the original. At a stop, are they going to do the same thing or are they going to get their finger prints all over everything by browsing through the phone?

     

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    kenichi tanaka (profile), Apr 30th, 2014 @ 9:24am

    Officer discretion will prevent abuse? Seriously? Officer discretion increases abuse as we have seen since September 11th as well as video recording of police officers. Courts have routinely said that videotaping is legal and cops continue to arrest people for videotaping them.

     

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      Barney Fife, Apr 30th, 2014 @ 9:31am

      Re:

      Officer discretion will prevent abuse.
      Because that has worked so well with; parking tickets, moving violations, and free doughnuts.

       

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    Deputy Dickwad (profile), Apr 30th, 2014 @ 9:38am

    I have never violate anyone's rights unless I felt I had a good reason!

    The reason was they needed a serious hardwood shampooing!

    Rinse and repeat.

    Then I go through all their stuff and PROVE that they are dirty criminals. Usually, if I don't find anything incriminating, I just send them some sext-messages from my stepdaughters burner phone, since she is 13 and there is grass on the field I say "Play Ball!"

    And blammo! another filthy child pornographer off the street!

    This is why I get the free coffee & donughts every day, 'cause I'm helping keep the public safe!

    I love what this country is becoming.

     

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    Ninja (profile), Apr 30th, 2014 @ 9:39am

    And the arguments the Government presented are exactly why warrants and the 4th are out there. Because officer discretion often means stomping the little guy regardless of what happens.

     

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    Internet Zen Master (profile), Apr 30th, 2014 @ 9:46am

    Was reading over at Ars that apparently Chief Justice Roberts was hoping to find some sort of "middle-ground" between 'get a warrant' and 'don't need one'.

    Problem with that logic is: there is no middle ground on this. If a cop arrests you and your cellphone's locked, then they need to get a warrant, period, full stop, end of story.

    So the good news that I'm seeing is at least 3 of the Supremes are skeptical of the government's argument/in the 'get a warrant' camp. The bad news is you have indecisive justices like Roberts trying to go both ways. And given how the USSC's been ruling lately, I'm not exactly feeling optimistic right now.

     

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      Michael, Apr 30th, 2014 @ 10:02am

      Re:

      If a cop arrests you and your cellphone's locked, then they need to get a warrant, period, full stop, end of story

      And if it is unlocked, it's ok to search exhaustively through it? What if it's locked without a password and the office just needs to swipe it?

       

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        Internet Zen Master (profile), Apr 30th, 2014 @ 10:46am

        Re: Re:

        Theoretically speaking, the requirement to swipe would be the digital equivalent to having your front door closed when the cops show up. If there's nothing incriminating in plain sight, cops have no probable cause for a warrantless search, so they need to get a warrant for searching the phone.

        Unlocked phones are a bit trickier. That said, I'd be surprised if you could find someone with a smartphone that didn't have at least a slide lock, since started showing up all the way back to 2009-2010.

         

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          Michael, Apr 30th, 2014 @ 11:06am

          Re: Re: Re:

          It actually depends a bit on the situation. I used to have a GPS mount for my phone that, while clipped in it, would make my phone remain unlocked and in dock mode.

          Would that eliminate someone's rights? It doesn't seem like it should to me.

          Anything beyond the phone being on, screen being on, and incriminating evidence actually being displayed on it without the officer touching it seems like a situation needing a warrant to me. Of course, I would also think that it would be appropriate to need a warrant to unfold a read a piece of paper found on someone as well, but that is clearly not the law.

           

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            Internet Zen Master (profile), Apr 30th, 2014 @ 11:53am

            Re: Re: Re: Re:

            Anything beyond the phone being on, screen being on, and incriminating evidence actually being displayed on it without the officer touching it seems like a situation needing a warrant to me.

            Honestly, I came to that conclusion myself. I mean, it falls under the basic "nothing criminal in plain view=no probable cause=warrant required" logic cops are supposed to adhere to.

            The problem is it's hard to enforce rules like that for phones as opposed to say, houses or filing cabinets (the other go-to for physical comparisons with smartphone data).

             

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    Anonymous Coward, Apr 30th, 2014 @ 9:51am

    Open admission...

    that the Government does not care about your rights and thinks they should be removed.

    Officer Discretion is worth shit in value because they have the same prejudices and dark hearts as every other human on the planet.

    Why can't I as a citizen have "Blow the fucking corrupt politician/law enforcement officer away" discretion like they pretty much have on me?

     

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      AricTheRed (profile), Apr 30th, 2014 @ 9:56am

      Re: Open admission...

      "Why can't I as a citizen have "Blow the fucking corrupt politician/law enforcement officer away" discretion like they pretty much have on me?"

      Simply put, you can do anything once...

       

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        Anonymous Coward, Apr 30th, 2014 @ 10:09am

        Re: Re: Open admission...

        Ah ha ha... like the snark, but still does not provide me with the discretion.

        People back in the day used to lynch their guys... maybe we should bring that activity back into popularity?

         

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    Anonymous Coward, Apr 30th, 2014 @ 9:58am

    The argument that the phone could be remotely wiped is the same as a confederate could burn papers if they do not come home in time. It is always possible to find some reason why getting a warrant could let a criminal get away. The whole objective of warrants is to prevent the police abusing their power, which relying on police discretion does not.

     

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    Anonymous Coward, Apr 30th, 2014 @ 10:07am

    I don't get why this is even an issue. Cellphones, especially in this day and age, should be treated exactly how a Laptop should be treated, which should be treated exactly how a Desktop should be treated in regards to searching the content within.
    Because that's what smartphones are these days. They're less phones (beep boop boop dial number look up address book) and more like miniature personal computers. In fact, they're miniature personal computers with the ability to sometimes also make and receive phone calls. You wouldn't treat a laptop like a cellphone just because it has Skype installed.

    This is especially important as we're moving into the age where one device is going to start replacing all of our devices. Such as the Padfone. You have a cellphone, which you turn into a tablet, which you turn into a laptop and then dock it in to your mouse/keyboard/monitor/printer at home.

     

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      Michael, Apr 30th, 2014 @ 12:46pm

      Re:

      Cellphones, especially in this day and age, should be treated exactly how a Laptop should be treated, which should be treated exactly how a Desktop should be treated

      They are treated the same. If you are carrying a notebook or desktop at the time you are arrested on the street - they are going to search it.

      They are also going to search the file cabinet you have in your pocket.

       

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        Anonymous Coward, May 1st, 2014 @ 8:03pm

        Re: Re:

        What if the data isn't actually on the phone at the time (in the cloud, or on your own computer) but accessed transparently? A reasonable analogy would be to carrying keys to your safe-deposit box in your pocket, but even that doesn't quite fit.

        For added fun, what if the data is in the cloud, but the company is foreign and they have no US presence, and aren't allowed under their local law to give up the data without a relevant local warrant?

         

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    David, Apr 30th, 2014 @ 10:08am

    The government argument is simple:

    Privacy in general and the 4th amendment in particular are a nuisance that might help criminals get away with stuff.

    And yes, that's the barrier set in the constitution, and for damn good reason.

    "Individual rights should be second to state interests" is the approach underlying fascism and quite a few of those systems misleadingly calling themselves "communism".

    The U.S. constitution has defined a relation between individual and state that is quite different from fascism. The U.S. government and in particular its department of "justice" is increasingly in the wrong country.

    One way they try coping with it is having declared a formal "state of emergency" where the constitution can be somewhat set aside by executive order for an astonishing number of years by now.

    Another is lying about what they do, and hiding stuff from their constituents as well as from congress.

    It would make sense if that government looked for a different country to govern rather than that of the Founding Fathers, but then it would be a pity to abandon the American populace which readily laps up every bit of crap that their masters throw from the table.

     

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    beltorak (profile), Apr 30th, 2014 @ 10:33am

    > "Now, since they can search for everything in your pockets before when it isn't the computer" the argument goes that they can search for anything on the computer that has a historical non-computerized counterpart.

    Cory Doctorow was right - "intellectual property" was the just the beginning. This is a darker side of the philosophy that grants patents to old procedures "on the computer" and "on the internet". It's a shame that we have to fight both of these beasts at the same time.

     

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    Anonymous Coward, Apr 30th, 2014 @ 10:46am

    Why isn't searching a cell phone, except under the strictest of conditions, considered spoliation of evidence? Ask any forensic analysis professional about the hoops they have to jump through in order to preserve data on computers...

    Perhaps some of the attorneys who might frequent this site could weigh in as to whether police rummaging through a phone under uncontrolled conditions could be argued as "spoliation of evidence." After all, if a cell phone is just a miniaturized computer, then the same digital forensic rules should be applied.

     

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      Deputy Dickwad (profile), Apr 30th, 2014 @ 11:02am

      Re:

      Just stop! You and your pesky logic along with your supposed "Rights" are going to get whats' comming if you don't stop trying to "Educate" the people.

      How the hell do you expect me to stop criminals if you keep putting up all these investigative roadblocks?

      In fact, stop right there. I smell drugs, and so does my partners dog, Were going to make a little trip by an emergency room in New Mexico and see just what it is you are hiding at the end of your digestive tract... and give me that damn cell phone while you are at it. I need to see if my step-daughters been texting you.

       

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      Anonymous Coward, Apr 30th, 2014 @ 11:04am

      Re:

      The mind set that desires a warrantless search is the same that thinks planting evidence on people that they know to be crooks is O.K. It shows a desire to take the crooks of the street by any means available, regardless of legal niceties.

       

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        Deputy Dickwad, Apr 30th, 2014 @ 11:52am

        Re: Re:

        "...to take the crooks of the street by any means available, regardless of legal niceties."

        My PR-24 is not nice.

        And I refuse to use an ASP 'cause when you say it you've got ass in your mouth.

         

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    Anonymous Coward, Apr 30th, 2014 @ 11:20am

    The biggest problem with the governments response of LEO discretion is that this case wouldn't be before the court were that discretion commonly used. It is because of continual abuse that this case is even here. It's become an everyday action for LEOs to do.

    The government is arguing for the free for all to continue. That privacy and the right for personal papers and effects are not valid. What is wrong with this picture pervades pretty much most of the actions by the government that have brought about the state of affairs we citizens now see.

     

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    Anonymous Coward, Apr 30th, 2014 @ 12:09pm

    you have to be friggin' kiddin' me!!

     

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    RD, Apr 30th, 2014 @ 12:47pm

    Accountability

    "In actuality, it's usually a very speedy process, but during these arguments, the government acts like it's a horribly laborious imposition. "

    No, thats not it. Everyone misses the main reason why the police are so eager to bypass getting a warrant. It's because then it is a matter of RECORD, and the last thing corrupt cops want is a paper trail of any kind.

     

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      Deputy Dickwad, Apr 30th, 2014 @ 12:57pm

      Re: Accountability

      RD you rat!

      I told you not to let the secret out, that's it! Text messages from my step-daughter for you!

       

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    chad holbrook, Apr 30th, 2014 @ 1:39pm

    odd to me...

    This seems to be a moot point. I can't believe that this has gotten this far. The government's main point is that they can't wait for a warrant to go through the phone... right?

    So, let's walk through this. They have a bad guy and take his phone. He does not have access to another communication device that would be able to wipe the phone. The police have him "in custody" and can monitor his communications. No need to hurry, the data is safe because he can't wipe the phone.

    Oh, what if his wife/gf/lawyer has his code to wipe the phone?!? Putting the phone in a radio stopping faraday style case would keep it from communicating out to the net and it could be taken to a police tech with a secure room to wait for a warrant. No need to hurry, it's all safe in the deadspot room.

    oh, what if he manages to wipe the phone anyway?!? A lot of the data is actually saved on third party servers. Call logs, text messages, calendars, contact lists, sometimes even photos and videos are on the carrier's servers or on Apple's iCloud, Google's drive, etc. No need to hurry, it's all safe on the cloud and that's unprotected by the 4th because of the asinine 3rd party doc and that 1980's law about abandoned email.

    No need to get a warrant, the data will be used against you no matter what.

    -chad

     

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      John Fenderson (profile), Apr 30th, 2014 @ 3:11pm

      Re: odd to me...

      "Call logs, text messages, calendars, contact lists, sometimes even photos and videos are on the carrier's servers..."

      In all fairness, this isn't always true. My phone stores none of these things on any third party serves at all. Call logs can be replicated from the carrier's own business records, but nothing on my phone is in anyone else's cloud.

       

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    RadialSkid (profile), Apr 30th, 2014 @ 1:45pm

    You're not "responsible" if you don't carry a smart phone? Seriously?

     

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    identicon
    Anonymous Coward, Apr 30th, 2014 @ 1:45pm

    There is something else...

    I have yet to see this pointed out but I think it's a valid point that really needs to be considered. Not only do smart phones contain a lot of personal information that is irrelevant to the investigation that would be invaded by such searches, but smart phones also act as portals to access information that isn't located on the phone but rather in other locations. This would be like saying that because you had your house keys on your person, then a warrant wouldn't be needed then to use them to search your home. Warrants are supposed to be required and narrowly target not only what is searched for but where it is searched. If they want to search your gmail account, they need to get a warrant to search that account on the Google's servers not simply use the fact that it can be easily accessed through a person's phone that happens to be on their person. You don't carry the cloud on your person even if you have a means to access it easily on your person.

     

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      Anonymous Coward, Apr 30th, 2014 @ 1:53pm

      Re: There is something else...

      And for those who will try to argue that the 3rd party doctrine means they don't need a warrant to access those the data in the cloud. Let me ask you this then: If you live in a rented home or apartment then does that mean that they don't need a warrant to search your domicile due to the 3rd party doctrine? You get the space from a third party just like you get the space from cloud service provider.

       

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        nasch (profile), Apr 30th, 2014 @ 9:00pm

        Re: Re: There is something else...

        And for those who will try to argue that the 3rd party doctrine means they don't need a warrant to access those the data in the cloud. Let me ask you this then: If you live in a rented home or apartment then does that mean that they don't need a warrant to search your domicile due to the 3rd party doctrine?

        Regardless of what analogies you want to draw, the fact is the precedent has been set that a warrant is not needed for data held by a third party.

         

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          Anonymous Coward, May 1st, 2014 @ 6:55pm

          Re: Re: Re: There is something else...

          I think you may be misunderstanding my point. I know the precedent exists. I also know it is a bad one based on flawed reasoning. What I was presenting is an argument that uses existing precedent to demonstrate those flaws.

           

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            nasch (profile), May 1st, 2014 @ 7:35pm

            Re: Re: Re: Re: There is something else...

            What I was presenting is an argument that uses existing precedent to demonstrate those flaws.

            I see, I thought you were trying to demonstrate that the people who claim that police don't need a warrant to search cloud data are wrong, and using the apartment analogy to prove it.

             

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              Anonymous Coward, May 1st, 2014 @ 10:28pm

              Re: Re: Re: Re: Re: There is something else...

              Quite the opposite. The fact the space is owned by a third party is irrelevant. In the same way that a leased apartment is subject to the necessity of a warrant to be searched, so should be accounts in the cloud.

               

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    Anonymous Coward, Apr 30th, 2014 @ 2:06pm

    How about this for a rule...

    Presence of a encryption and/or a locked device is absolute evidence of a reasonable expectation of privacy with regards to the content contained. If the person didn't have a reasonable expectation of privacy they would not have enabled such features in order to safeguard against the invasion of that privacy.

     

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      nasch (profile), Apr 30th, 2014 @ 9:01pm

      Re: How about this for a rule...

      Presence of a encryption and/or a locked device is absolute evidence of a reasonable expectation of privacy with regards to the content contained.

      I would rather not go there, because that implies that someone who didn't take specific steps doesn't have any expectation of privacy. I would rather the police always had to get a warrant no matter what protection is in place on the device.

       

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        Anonymous Coward, May 1st, 2014 @ 6:49pm

        Re: Re: How about this for a rule...

        Absence of evidence is not evidence of absence.

         

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        Anonymous Coward, May 1st, 2014 @ 10:43pm

        Re: Re: How about this for a rule...

        It implies no such thing. It merely states that those who use such features demonstrate that they do so because they value their privacy and thus demonstrate meeting the bar of a reasonable expectation of such. Not using those features does not demonstrate a lack of such an expectation though as the lack of use could simply be a lack of awareness of such features or a lack of understanding of how to employ such features whereas the expectation still exists despite the absence of their implication.

         

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          nasch (profile), May 2nd, 2014 @ 7:33am

          Re: Re: Re: How about this for a rule...

          Not using those features does not demonstrate a lack of such an expectation though

          Then there is no reason to specially reinforce the expectation of privacy that comes from using such features. Let's have the laws just protect everyone's privacy.

           

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            Anonymous Coward, May 2nd, 2014 @ 2:48pm

            Re: Re: Re: Re: How about this for a rule...

            I agree that the 3rd party doctrine was a bad decision that needs to be overturned. That would be ideal. However, being realistic and pragmatic, as long as the courts use it where 4th amendment protections hinge on whether there is an expectation of privacy and argue that such expectation does not exist, plaintiffs will have to counter those arguments by demonstrating that such expectation does exist which is the crux of what I am saying. If a person enables a feature on a their device where the sole purpose is to limit access to the contents of that device to themself and others that they willingly grant access such that the privacy of that content is maintained, then that clearly demonstrates that they have a reasonable expectation of privacy with regards to that content. To argue that they don't is simply ignoring basic logic. There is no other reason people would use enable such a feature.

             

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              nasch (profile), May 2nd, 2014 @ 4:04pm

              Re: Re: Re: Re: Re: How about this for a rule...

              If a person enables a feature on a their device where the sole purpose is to limit access to the contents of that device to themself and others that they willingly grant access such that the privacy of that content is maintained, then that clearly demonstrates that they have a reasonable expectation of privacy with regards to that content.

              So are you just saying that given the crappy situation that exists now, the best way to counter it is to use your phone's security features? If that's your point then clearly you're right.

               

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                Anonymous Coward, May 5th, 2014 @ 7:27am

                Re: Re: Re: Re: Re: Re: How about this for a rule...

                That coupled with the legal argument I propose would at least give you SOMETHING to counter the 3rd party doctrine.

                 

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    KRA, Apr 30th, 2014 @ 3:50pm

    Faraday bag

    I agree with There is something else. The police can completely prevent the phone from being accessed , then get their warrant if they have grounds.

    Of course, this is assuming there's a judge who actually, you know, has a stray thought now and then about the Constitution. But that's a different issue.

     

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      BeeAitch (profile), May 1st, 2014 @ 6:51pm

      Re: Faraday bag

      This.

      The phone can be placed in a Faraday bag ( US$10-US$34) on site, then transported to a Faraday cage/room within the cop's own evidence room.

      The phone could be left in the Faraday bag, within the Faraday cage/room until a warrant is obtained.

       

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    myperbole (profile), May 1st, 2014 @ 12:38am

    Warrants

    The only reason anyone ever argues against the need for a warrant is that a judge might say "no."

     

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      That One Guy (profile), May 1st, 2014 @ 3:47am

      Re: Warrants

      Partially, but the biggest reason is the paper trail and limits a warrant sets, as without one they can do whatever they want, search where-ever they want, no actual evidence needed, just a 'hunch'.

       

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


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