

Obama wants all the info in your smart phone without a Warrant - Cbasedlifeform
http://www.juancole.com/2013/08/without-warrant-lazare.html

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rayiner
There is apparently not space in this article for the important qualifier:
during a search incident to arrest.

The administration isn't arguing they should be able to search cell phones
whenever. The case is about a legitimate search incident to an arrest. The key
sentence from the article: "Last month the Obama administration stepped in and
petitioned the Supreme Court to hear the case and rule that the cellphone
search is, in fact, lawful, because, 'a cellphone is no different than any
other object a suspect might be carrying' and thus fair game for searches."

Police are allowed to search you when they arrest you. That includes looking
through say a backpack you might be carrying. The Obama administration is
simply arguing that the contents of a cell phone should not be treated
differently than the contents of a backpack. This is a sensible, intuitive
argument to make.

The key consideration for such searches is securing weapons and preventing the
suspect from destroying evidence. The weapon concern obviously doesn't exist
with cell phones, but the destruction of evidence concern certainly does.

Obama's argument is that creating the additional wrinkle of disallowing
searches of particular kinds of things will create additional litigation over
searches incident to arrest. Which is a legitimate concern: the courts are
filled with all sorts of nonsense by criminal defendants trying to get off on
the technicalities of searches.

~~~
GoodIntentions
>> The key consideration for such searches is securing weapons and preventing
the suspect from destroying evidence. The weapon concern obviously doesn't
exist with cell phones, but the destruction of evidence concern certainly
does.

I don't buy that. There is nothing stopping an officer from physically
obtaining the phone to preserve its' state pending later search under warrant.
The immediate search of a pack/container/whatever for physical threat, I
understand. The contents of a phone don't fit this same criteria.

~~~
tptacek
I think you might be confusing two different search authorizations; people
make this mistake all the time.

The first common authorization for a search comes from _Terry_ , and allows
the police to conduct a cursory search of the outer layers of your clothing
(not including pockets) to attempt to detect weapons. The grounding for
_Terry_ searches is _exclusively_ officer safety. _Terry_ searches are the
basis of "stop and frisk".

The second common authorization is "incident to arrest". The police can
conduct a thorough search of your person, effects, and immediate vicinity if
they actually place you under arrest. The grounding for this search is both
officer safety _and_ collection of evidence. In fact, I think even Rayiner is
a little wrong here; the incident to arrest authorization doesn't merely
concern destruction of evidence, but is specifically concerned with collecting
all the evidence that could be the fruit of an arrest, whether or not it's at
risk of destruction. The meaning of search incident to arrest goes all the way
back through Common Law.

The Obama DoJ is clearly referring to search incident to arrest.

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danso
The link to the original WaPo report has been obscured in the OP, but it's
worth reading to get a full understanding of this case

[http://www.washingtonpost.com/blogs/the-
switch/wp/2013/08/19...](http://www.washingtonpost.com/blogs/the-
switch/wp/2013/08/19/obama-administration-asks-supreme-court-to-allow-
warrantless-cellphone-searches/)

> _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._

It's not quite the easy jump to declare that this case would open the gates to
warrantless domestic phone surveillance. The defendant was arrested first. The
WP post doesn't say if the police needed a warrant to get into the house or if
the call represented "probable cause"

Also worth noting: the phone in this case was a dumb phone

~~~
rainsford
The government's argument in this case seems fairly reasonable. Conducting an
in-person search of a cellphone after the suspect has been arrested seems
similar to going through a bag they're carrying.

The WaPo article argues that the storage capacity of modern cellphones should
make them legally different (even though the phone in this case was a dumb
phone), but I'm not sure how such a legal standard would work. I suppose one
approach would be for police to be able to search things physically on the
phone (like contact lists) but not things that the phone simply gives them
access to (like email, social networks, bank info, etc). The problem with a
smartphone is not so much that it contains a ton of info, but that it serves
as an access point to a lot of personal info that would otherwise require a
warrant to obtain.

Maybe the legal analogy would be that police can't search your house without a
warrant after they arrest you even if you have your house keys on you at the
time. They can search your belongings but can't use those belongings (like
keys) to conduct further warrantless searches.

~~~
Amadou
_The problem with a smartphone is not so much that it contains a ton of info,
but that it serves as an access point to a lot of personal info_

The current situation may very well change. It is entirely possible that much
of that information stored "in the cloud" will migrate to being stored
directly on people's phones.

Facebook owes the majority of its popularity to being a place that easily
hosts and shares photos. The continuing increases in wireless bandwidth and
physical storage available on phones coupled with the growing understanding of
the security risks of giving personal data to 3rd parties means that paradigm
could shift quite easily.

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devx
If this passes, it will be a ruling as bad, if not worse than Citizens United.

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jasonlotito
So, I might be in the minority, but I think this is a fair discussion to have.
At it's most basic level, it's a question of whether the contents of items
found can be apart of the search. After all, if the police have the right to
search you, then they are allowed to open the wallet you are carrying and
search it (and obviously this isn't 1:1 the same as a mobile phone, but I'm
just trying to have an honest conversation about this, so if you want to
anally start picking apart individual phrases or words, go somewhere else
please. Edit: Clearly, reading comprehension isn't the same or as valued. I'm
not suggesting a wallet and a phone are the exact same thing. Nor am I
suggesting they are comparable. If your comment starts off by saying this,
you've failed. I should just have made a comment about how this is awful and
"OMG Snowden!" rather than have a discussion).

I'm not up on the law with regard to weapons, but assuming there is a
difference in charges regarding a gun and a loaded gun, the same argument
could be made: you didn't have the right to search the contents of a gun? And
yeah, that's stretching the comparison. =)

So how fine grained do you make the warrants? This is already established
within the warrant system. As I understand it, you can't search a small locked
safe if your warrant limits you to searching the property for a car. But in
the case where a person is arrested for selling crack/cocaine, and during the
arrest the person is searched, and the phone is found, how far is too far.
After all, if a bag of white power had been found, would a separate warrant be
needed to search the bag?

Anyways, it seems like this is something that should be addressed. While I'm
in support of the 4th Amendment, it discusses unreasonable searches. And it
seems reasonable to assume that if you get arrested for dealing drugs, it
would be a reasonable thing to search the mobile phone you had for records.

Obviously, not a lawyer here. Completely arm chairing this. Corrections
welcome.

~~~
DamnYuppie
I agree this is a conversation that should be had.

Yet I vehemently disagree with your comparison of a cell phone to a wallet.
The amount of information carried on a phone dwarfs the information carried in
your wallet. The information in your wallet can't give a detail view of where
you go, what you say, to whom, and when.

I believe warrants should be very fine grained and not used a troweler net to
be cast about hoping to catch someone for any "minor" infraction they can
find. The preponderance of regulations, rules, and laws means everyone one in
this country is a criminal several times a day and is simply waiting to be
caught.

~~~
jasonlotito
> Yet I vehemently disagree with your comparison of a cell phone to a wallet.

Well yeah, that's why I said it wasn't a one to one comparison, literally
right after. So, not sure what you are disagreeing with. Seriously, either you
didn't read the rest of my comment, or you chose to ignore it.

> The amount of information carried on a phone dwarfs the information carried
> in your wallet. The information in your wallet can't give a detail view of
> where you go, what you say, to whom, and when

Yes, hence my reason for suggesting that they clearly aren't the same thing.

That being said, this case is also not about a smart phone.

> I believe warrants should be very fine grained

They generally are. They are usually very specific about what they are looking
for.

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001sky
_It 's worth thinking through the implications of adding bio-metric security
features to smartphones_

