
Obama administration asks Supreme Court to allow warrantless cellphone searches - eplanit
http://www.washingtonpost.com/blogs/the-switch/wp/2013/08/19/obama-administration-asks-supreme-court-to-allow-warrantless-cellphone-searches/?print=1
======
GauntletWizard
Your cellphones and personal computers shouldn't be protected by the Fourth
ammendment; They should be protected by the Fifth. More and more, cellphones,
PCs, and even other people's servers are becoming invaluable, impossible-to-
live-without brain extensions. That they should be allowed to be used against
you in court is insane. The communications that they send and receive should
be subject to well-overseen surveillance, but the devices themselves are as
much you as you are.

I imagine a not too far off future where your glasses tell you your schedule,
where haptic and audio feedback are constantly feeding you a stream of your
important information; Where even moreso than today, your personal data
network _is_ you. There's a chapter in Accellerando ^1 where Manfred's glasses
are stolen, and the thug who steals them becomes Manfred by simple virtue of
putting them on and being overwhelmed by the signals. He's not a very good
Manfred, but he quickly is more Manfred than the person he was. It's only a
matter of time before "I" am my newsfeeds, e-mails, calendar reminders, etc.

[1] [http://www.antipope.org/charlie/blog-
static/fiction/accelera...](http://www.antipope.org/charlie/blog-
static/fiction/accelerando/accelerando-intro.html)

~~~
DannyBee
The fifth amendment was only ever intended to be dealing with testimony - you
couldn't be called as a witness against yourself (the history of why it exists
makes this clear). That is, you literally can not be asked to testify against
yourself, in a custodial interrogation, court, or other setting where it could
be used as evidence against you in a criminal trial.

It was never intended to prevent evidence you were stupid enough to write down
from being used against you.

So basically, "insane or not", the fifth was clearly not intended for this
purpose, despite your attempt to view this as "an extension of yourself".

~~~
cgshaw
Attorney here.

DannyBee is absolutely correct. To my knowledge, data on a computer would be
handled like an offender's diary, and that is certainly admissible in court,
assuming authentication that the diary was actually written by the offender.

Data is interesting because authentication can arguable be harder to prove.
(handwriting is pretty easy to attribute)

The truth is, the founding fathers likely could not have imagined in their
wildest dreams that we could have all of human history on a flash drive with
us at all times. Trying to apply "how they would have thought" or "WWFFD" to
every new technology is kind of insane.

~~~
mikhael
I read GauntletWizard's point as that such devices are becoming like "brain
prostheses." If the device were embedded in your skull/brain, but could be
wiretapped, would it be subject to the fifth amendment? If technology develops
to read information from another's brain without their consent, would that be
subject to the fifth amendment?

~~~
DannyBee
An interesting question. Again, the main historical reason for the fifth
amendment was torture, not to avoid knowing the truth, or that you were
somehow magically sacred.

If you could read it out of people's brains, harmlessly, painlessly, etc, i
think that would be fine.

Now remember, the fifth amendment protections apply in custodial settings (and
similar), so you would already have to have been arrested/etc at this point
(IE probable cause would have existed).

In that situation, if i could read your brain to get the truth, harmlessly,
and painlessly, I have trouble seeing how that would be against the reason the
fifth amendment was created (now, it may arguably run afoul of the fifth
amendment as written, though things like blood tests, etc, are not considered
testimonial. I don't believe literal memories would be either)

~~~
nitrogen
_If you could read it out of people 's brains, harmlessly, painlessly, etc, i
think that would be fine._

I must state that this sentiment sickens me slightly. I sincerely hope that
this interpretation is absolutely unthinkable by the time technology reaches
that point. I don't believe that any world in which one's thoughts and
memories are not private can ever be free.

~~~
DannyBee
Sorry, I should have been clear: I meant fine legally, in the context of the
fifth amendment. It is not a statement of what I believe the social
view/norm/etc should be, or whether it should be allowed. Only an objective
assessment of whether it would fall within the context of what was currently
protected and the intent of protecting that.

Personally, I would find it abhorrent, but that is not particularly relevant
to the law.

~~~
tptacek
I read something recently --- can't remember what --- that suggested that the
expensive ceremony around obtaining phone wiretaps at the state level were in
part motivated by the concern that wiretaps came close to reading the thoughts
of the accused.

~~~
DannyBee
I imagine this is more along the lines of 4th amendment or thoughtcrime.

I actually believe we are likely to need another amendment to protect us in
the future, because I don't think the fifth does or would do a good job of
this.

~~~
TsiCClawOfLight
But will that amendment be passed in a country like this... ?

------
tptacek
Careful about the "warrantless" here. It's true, it's a warrantless search,
and don't think I'm saying that's an illegitimate concern. However:

The police already have broad authority to search you and your immediate
person incident to an arrest. If this is news to you, you _really_ want to
read up on it. This is one of the big things that makes a formal arrest
different from mere detention, and one of the reasons the ACLU guides and
things like that instruct you to clearly ask if you're "under arrest".

All the DoJ is saying here is that a cellphone is, like your pockets and your
bags, a legitimate target of a search incident to arrest. There's apparently a
circuit split on the issue. There are other things that _aren 't_ legit
incident to arrest; for instance, certain kinds of car searches aren't lawful
solely because of arrest (trunks can be searched if cars are impounded, but
only for "inventory", and can't be searched IIRC if the car isn't impounded;
similarly, being arrested outside won't give the police the automatic
authority to search your house).

~~~
cgshaw
Attorney here.

The search incident to lawful arrest doctrine is rooted in officer safety.
Specifically, the Court says officers should have the ability to look for guns
and contraband when someone is pulled over and it's likely they are armed or
their immediate person or vicinity poses a threat and/or has evidence of a
crime. The courts have decided that any drug suspicion means they are likely
to have a weapon, which is unfortunate, but at least based in some reality.

To my knowledge, the only court (and courts are split) that has allowed
electronics to be searched is when a drug dealer was pulled over in California
and incident to lawful arrest, the officer downloaded the call history to help
them find others involved in the drug trade.

There is NO COURT to my knowledge that would authorize warrantless search or
confiscation of someone's cell data, computer data, jump drives, etc. without
an arrest taking place. That is a fishing expedition and it's exactly what the
Court has ruled unconstitutional under the 4th amendment.

This is where I get very frustrated with the NSAs ability to collect the call
information in the first place. The only reason to collect it is to fish
later—that's not how the law is supposed to work.

These are complex problems that very few judges or lawmakers have enough
understanding of technologically to make informed judgement, IMHO, however.

EDIT - My best guess is that the Court will allow basic access to a cell phone
taken in a lawful arrest. I.E., like the article linked above, an officer
would be able to look at the call history, but not necessarily download the
content of the phone. I think the offender's brief will likely ARGUE that the
phone not be accessed at all, with the true hope being the Court merely limits
what officers can do.

I have a hard time believing they won't let officers look at any of the
electronics with them. I also _hope_ they don't just let officers download
everything carte blanche.

~~~
tptacek
Not an attorney here.

The case we're talking about was search after arrest.

 _If immunity [to a warrantless search] is to be conceived of as a rule, there
is one exception that has been established as firmly as the rule itself. The
government may search the person of the accused when legally arrested to
discover and seize the fruit or evidences of crime._

also (cited in Harris v US):

 _The right without a search warrant contemporaneously to search persons
lawfully arrested while committing crime and to search the place where the
arrest is made in order to find and seize things connected with the crime as
its fruits or as the means by which it was committed, as well as weapons and
other things of effect an escape from custody is not to be doubted._

Officer safety is one of three motivations for search incident to arrest I've
read about; two more are evidence collection (as above), and mitigating the
risk that evidence that could later be collected via warrant might be
destroyed.

 _Terry_ stops, on the other hand, are motivated solely by officer safety.

~~~
cgshaw
I said rooted in officer safety, not solely because, ;-).

Even if the search happens AFTER the arrest (assuming it's lawful, without
that there is no internal link to a legal search), the court is still going to
look at whether the seized item was taken incident to the arrest. That's why
trunk's can't be searched unless there is a "particularized" reason, i.e.
drugs, contraband, other evidence of the specific crime for which the offender
was arrested for.

Under that line of reasoning, it's pretty likely courts would be ok with
thumbing through the offender's call history to find other possible offenders
for the related crime.

Not saying it's right, but that's how the law is evolving on evidence
collection. Truth is, we need much deeper analysis on the technology at hand,
but our courts are OLDDDDDDDD. Not saying octogenarians can't make effective
re: technology, but it certainly hasn't bore out that way yet.

------
shaggyfrog
Fellow Canadian HNers: this is already allowed in Canada, _if_ your cell phone
_does not_ have a passcode. If you haven't already put one on, even a trivial
code, do it now.

The recent court ruling that made it possible:
[http://canlii.ca/en/on/onca/doc/2013/2013onca106/2013onca106...](http://canlii.ca/en/on/onca/doc/2013/2013onca106/2013onca106.html)

> [75] If the cell phone had been password protected or otherwise “locked” to
> users other than the appellant, it would not have been appropriate to take
> steps to open the cell phone and examine its contents without first
> obtaining a search warrant.

------
jcampbell1
> In 2007, the police arrested a Massachusetts man who appeared to be selling
> vodka 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 vodka, cash and guns.

50 years from now, this article is going to seem like a bad joke.

~~~
anfedorov
The article currently says "drugs, cash, and guns". Was that changed, or are
you making a joke?

~~~
dwaltrip
He is implying the drug war will have ended, while also making a reference to
prohibition.

------
jellicle
Let's be clear about the future: in the very near future, every person will
carry access to every piece of digital information they have ever interacted
with, on their person, at all times.

This is already pretty much true today; it will certainly be absolutely true
tomorrow.

Allowing warrantless searches of this pile of data eliminates any idea of
needing search warrants at all.

~~~
ohWhatever
Let's be clear about your hyperbole: in the very near future, everyone will
read some news article about the shocking transgressions enabled by the
retarded idea of just waltzing around with your entire life story on your
person at all times, and they'll wisely avoid ever doing such a stupid, stupid
thing.

When you use words like "every", "any", "always" and "all", it can severely
weaken your argument.

------
brymaster
This that same Obama that was on TV two weeks ago saying _' We don't have a
domestic spying program'_ and that same Obama that a few days later was _'
promising greater oversight and transparency and insisting he had no interest
in snooping on ordinary citizens.'_ ?!

This feels like an Orwellian nightmare that I just woke up in.

~~~
einhverfr
If he spies on everyone, foreign or domestic, is it a "domestic spying
program?"

~~~
brymaster
Yes, word games they play to mislead.

------
grandalf
Let's all remember this kind of thing the next time we are inspired by a
candidate's promises or rhetoric.

~~~
AlexandrB
Okay. Who should Americans vote for then? Here's what the Conservative party
had to say during the 2008 election cycle:

"Although our country has thwarted new terrorist attacks since 2001, those
threats do persist. That is why our reform of the Foreign Intelligence
Surveillance Act was so vital, and why the Democrats' opposition to it was so
wrong."

Hmm, sounds like they were promising more of the same.

If your suggestion is voting for an independent, is there a realistic scenario
where an independent candidate could get elected in the United States?

~~~
danenania
"If your suggestion is voting for an independent, is there a realistic
scenario where an independent candidate could get elected in the United
States?"

How about a scenario in which all the people who claim to be voting for the
lesser of two evils reevaluate their own defeatist attitude? If the only thing
stopping a significant enough percentage of people from voting for a 3rd party
is the perceived inability to win, then it's just a coordination problem.

It would be interesting to see a poll asking "If you knew the candidate you
voted for could win, who would you vote for?"

Another argument for voting according to your principles is that based on the
electoral college system, only people living in a few states actually
contribute to the outcome of the election with their votes, so if you don't
live in one of those states, you might as well show your support for someone
you don't consider to be evil.

~~~
AlexandrB
> How about a scenario in which all the people who claim to be voting for the
> lesser of two evils reevaluate their own defeatist attitude? If the only
> thing stopping a significant enough percentage of people from voting for a
> 3rd party is the perceived inability to win, then it's just a coordination
> problem.

I think that's a bit idealistic. A lot of people voted Ralph Nader in 2000,
and while it's up for debate whether this cost Gore the election, I think many
voters are now turned off the idea.

In a close con/dem race, I think many would rather have _some_ of their
positions represented by the resulting POTUS than shoot for the moon and risk
"splitting the vote". One of the major parties would have to do some truly
outrageous shit and alienate their base before this dynamic changes.

~~~
snth
> One of the major parties would have to do some truly outrageous shit and
> alienate their base before this dynamic changes.

For me, recent events qualify.

------
leknarf
The original arguments for "search incident to arrest" are for the arresting
officers' safety (it's quite reasonable to check if a suspect has a weapon)
and to prevent the destruction of evidence.

I was surprised to read in the article that previous cases have "given the
police broad discretion to search possessions on the person of an arrested
suspect, including notebooks, calendars and pagers." Those decisions
represented a significant loss of due process.

I dislike the administration stance, but they have a fair point. A cell phone
isn't substantially different than a paper notebook. Trying to draw an
arbitrary distinction between physical and digital media is missing the point.
We shouldn't be arguing for stronger protections of digital data. We should be
arguing for stronger protections of all data, regardless of how or where it's
stored.

------
fnordfnordfnord
Get ready to be arrested for something _every time_ police notice you filming
police activity.

------
codeka
It's an interesting question. I think the specific circumstances described in
the article, where the police looked in the suspect's phone to find his home
address is arguably not a bad search. But as they point out in the article,
how far can you take it? Can you look up a person's recent contacts? His
browser history? His "downloads" folder? His emails?

It seems like a very small step from looking up the last few people he called
to going through all his emails...

~~~
tptacek
It is interesting! If you get arrested driving your car, the police can't then
go to your house and copy all your private papers; they need to get a warrant
to do that. But in 2013, you're as likely to be carrying around all your
private papers as you are to keep them in your house. So it can't reasonably
be the case that an arrest gives the police access to your accounts online!

------
lessnonymous
I don't see the problem. If I'm selling drugs out of my car and the police
have the right to search it, then they have the right to search the paper
notebook on the seat next to me. If there's a phone number in there then they
can do what they want with it under the law: which could include working out
where I live from it.

To search my home they need a warrant. Which means they need probably cause.

How is a cell phone any different? The law shouldn't be about storage
capacity! If it is, then you're saying that they can search the 48 page
notebook on the passenger seat, but the 128 page is off limits. That's
ludicrous.

Now under the 5th, he should have the right not to unlock it for the police.
But they certainly have the right to seize it.

The headline seems to be sensationalist and trying to surf the Snowden saga
for readers. It's not related.

Edit: I'm ignoring the sanity of prohibition laws, but just comparing this
story to common sense.

~~~
nickles
A cellphone serves as a digital container into one's life. As it is a
connected device, the cellphone has access to potentially limitless
information about a person since the data is not necessarily stored on the
phone itself but rather on servers elsewhere. Finally, one typically does not
have complete control over the data that resides on their phone (installing
the Facebook application, for example, allows others to stream their content
directly to your device).

You're correct that this is unrelated to the NSA's surveillance programs.
However, it does represent a threat to US citizens' constitutional
protections.

------
cupcake-unicorn
I now keep a Nandroid backup of a blank "fake" OS around on my phone, for
emergencies...why? I was detained crossing the Canadian border for an hour as
the border patrol read through my personal emails on my phone and who knows
what else. If I hadn't supplied the password willingly to them, I'm sure they
would have refused me entry, so I couldn't do much about it. But having an OS
to boot into on any device that's pretty cleared out and submitting that
willingly works much better over denying the password. Of course, if you have
any really sensitive stuff, this method wouldn't work super well, as the
devices could be searched more thoroughly, but to stop harassment when
crossing borders, at police stops, etc. I think it's a good idea.

------
graycat
Lesson: Just do _not_ leave your home, where the Fourth Amendment still
applies, with anything you don't want the police to have.

For digital data, make sure any mobile device you have outside your home has
all its data on your home server and that the digital device can be wiped
clean of any cached data quickly.

------
prawn
There was a story on Reddit recently of a policeman accessing a woman's phone
during a traffic stop (I think), finding raunchy photos of her on there and
forwarding them to himself. Anyone remember it?

Removing barriers to access seems unfairly risky to me.

------
jobu
Yeah, that'll never be abused...

------
fixxer
I get the argument that data I store on the Cloud is open to interpretation
given the 3rd party (if I give Google the right to look at my data, then it is
unreasonable for me to expect privacy on par with a physical drive in my
possession), but data stored on my cell (a physical piece of equipment in my
possession)? WTF?

~~~
tptacek
I carry around a Tom Bihn bag. I do not generally let people look inside of
it. When stores ask, I leave. However, if I'm arrested, the police will be
allowed to search that bag, despite it being a physical pice of equipment in
my possession. That's because the police do get to search you, rather
thoroughly, if you're arrested.

~~~
fixxer
But you still have some expectation of privacy.

Search is supposed to be limited to the area within their immediate control
for purpose of seizing any weapons or "obvious evidence related to or separate
from the crime incident to the arrest".

I guess it comes down to how we define obvious. Is the file system on my phone
obvious?

EDIT: Tom Bihn? You need to get a CountyComm EOD Utility Bag. Nothing says
"hello" to TSA like a bag with pockets designed for M4 clips.

------
gms
It is interesting to consider what the implications of this would be. Does
this mean the police would be able to open the Facebook app on my iPhone, and
browse my profile as well as all my friends'? Including all wall posts,
messages, photos, etc? Technically, none of this is stored on the phone
itself.

~~~
tptacek
Maybe that's like the car/house analogy: the stuff on your actual phone is
like what's in plain view in the passenger compartment of your car, but the
stuff in your Facebook account is like what's back at your house.

But then, that only buys us a couple more years of reasonable delineation;
eventually technology will get us to a place where all the data we want to
protect is always resident with us.

------
magoon
Our governments now investigate people, not crimes. This turning point is
undeniably catastrophic.

------
aptwebapps
Perhaps a compromise like being about to search your address book or other
basic phone features but not files or programs which happen to be on the
device? It seems that the latter, at least, should be included under 'papers
and effects'.

------
BrianPetro
To make sure you aren't carrying any top-secret files to the airport of
course, I mean terrorism...

------
splrb
Obama's gone totally rogue.

------
wtvanhest
I prefer that police have less power than more power. That being said, this is
how a system of checks and balances should work.

I'm hoping the supreme court says no but if they say yes, I am at least happy
that the correct process was used rather than police continue to search phones
while waiting for a supreme court decision.

------
jemeshsu
Obama administration == US government. True or false? Are they the same?

~~~
harshreality
Are you trying to start a semantic debate about what the U.S. Government is?
One possible definition of government is the executive branch, and the Obama
administration, currently, is (close to) the least abstract definition of the
executive branch of government. Equivalence relations are not defined with
respect to things like the Obama administration and the U.S. Govt.

In other words, your question is inadequately specified.

------
ndesaulniers
Article by Timothy B. Lee, as in Sir Tim Berners-Lee father of the WWW??? :P

~~~
tedunangst
You can click on the author's name to read his bio. Well, you could on the
normal web version, anyway, instead of the print version that HN links to.

