
Feds Beg Supreme Court to Let Them Search Phones Without a Warrant - hashx
http://www.wired.com/2014/04/smartphone-kill-switch
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tptacek
They want the authority to search phones _incident to arrest_. Before you form
an opinion about this --- I'm not sure what mine is --- you should know that
the police have always had broad authority to conduct warrantless, intrusive
searches at the time of an actual arrest. That's one of the things that makes
arrest very different from mere detention.

If you're arrested by the police, they will not generally need to obtain a
warrant to search your person, your pockets, your bag, or the passenger
compartment of your car. Thoroughly.

People confuse "search incident to arrest" with "Terry stops", which are
light, supposedly unintrusive searches that can be conducted without
individualized suspicion for purposes of officer safety (ie, for weapons).
Terry stops are the ones where, supposedly, the police aren't supposed to be
reaching into your pocket. Search incident to arrest, going back over 100
years, has always had a purpose of _discovering and preserving evidence_ ;
they aren't simply about officer safety.

That said: a modern smart phone is more than just a container you carry on
your person. It can provide access to much of the same personal information
that a search of your most personal possessions would. It's a totally
reasonable question as to whether an intrusive search of the data on a
smartphone falls into the rubrick of what search incident to arrest was meant
to cover.

Either way: make sure your phone is encrypted.

~~~
001sky
_Either way: make sure your phone is encrypted_

> What is to stop them from compelling your PW?

> Is the 5th amendment sufficiently broad to invoke here for blanket
> protection?

~~~
danielweber
IANAL, but the "search incident to arrest," for all its broad powers, still
doesn't reach the strength of what a court can compel you to do.

During arrest, you have the right to remain silent.

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guelo
Since modern technology keeps extensive track of everybody's life at all
times, when police take an interest in you they now get to examine a complete
picture of everything about you. What you were doing, what you were going to
do, who you've been talking to, who you work for, your family, your sex life,
your romantic life, your interests, your politics, your religion, everything.
Why get a search warrant if they can just pull you over for not signaling
correctly and then get access to your entire life nicely packaged for them?

Ten years ago they didn't have any of these tools that they now claim are
indispensable to do their jobs. How did they do their jobs back then?

~~~
rayiner
> Ten years ago they didn't have any of these tools that they now claim are
> indispensable to do their jobs. How did they do their jobs back then?

To be fair, ten (well, twenty) years ago people did all those things in a way
that was much more visible to the police. People would go get film developed
at the drug store, people would use pay phones, etc.

~~~
talmand
I would say nothing has changed in the long run. As new technology has
appeared that may make it easier to avoid the interest of law enforcement, so
has the technology that law enforcement uses to counter the avoidance.

If you were a part of a criminal enterprise twenty years ago you developed
your own film and never use the randomly chosen pay phone more than once.

I would even go as far to say that their jobs of collecting usable evidence is
much easier today than it was twenty years ago.

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appleflaxen
Police work /should/ be hard. We don't /want/ it to be trivial for police to
poke around in the depths of your personal data, fishing for reasons to think
you might have done something wrong in the past.

"my job is difficult" is not sufficient reason to justify what they are asking
for.

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beedogs
As the article mentions, there's no real need for these search powers, when
the phone can simply be turned off or physically taken out of range of
reception to prevent it from being wiped. The feds have yet to prove this is
even a real problem.

~~~
scintill76
What about a "dead-man's switch" that wipes if the authorized user doesn't
authenticate every 30 minutes or so? If network connectivity is lost for too
long? And turning it off risks losing resident data on the latest activities
of the phone, encryption keys in memory, etc.

I'm by no means a whole-hearted supporter of DOJ's position on this, but I
think their opponents are also exaggerating the availability of other options
to collect evidence later.

~~~
YokoZar
That dead man's switch sounds like a great way to wipe your phone every time
you take a nap.

Regardless, if the hypothetical possiblity that some incredibly uncommon dead
man's switch exists is justification for this sort of search, then only allow
that sort of search if the police have some sort of reasonable suspicion such
a switch exists.

It's analogous to how unwarranted home searches are permitted only if an
officer reasonably believes there's imminent destruction of evidence - we
don't just allow all home searches without warrants because somewhere out
there someone might destroy evidence in their house.

~~~
scintill76
If I were a drug dealer, I think I'd take on pretty onerous risks like that.
You could reconfigure the wipe interval and/or drop all sensitive data from
RAM and leave it in a safe encrypted state, as the situation requires.

You have good points. Both sides seem to be pushing for the extreme
permissiveness or restriction in their respective viewpoints, but the best
probably lies in between, as you say.

~~~
chongli
Drug dealers use burners by the bucketload. They have no need for fancy
smartphone encryption.

~~~
scintill76
And when their burner is seized by the police, what protection do they have
from all their accomplices being harvested from the contacts list? I guess the
numbers can mostly be derived by subpoenaing call records from the phone
company, but the names could be useful to police.

I guess really smart and serious dealers are going to use cheap burners AND
not save numbers, or at least only with useless (to the police) names.

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sitkack
Why are warrants so bad? How about a public log of every agent and what they
searched for and why they searched it.

I believe we would be exposed to the inanity of their methods and means. It is
sheer embarrassment that they don't want their actions logged.

~~~
talmand
Because sometimes a police goof that goes public may hurt the victim more than
the police. Many people would note that the police searched your house for
child porn but many may fail to notice the police got a bogus address from a
paid informer who needed money.

Plus I believe that stuff is often public knowledge, it's just not collected
in an easy to use manner I would imagine.

It's not that warrants are bad, it's just that the abuse of warrants and SWAT
being used for trivial warrants makes them seem bad.

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greenwalls
Do you think the kill switches mentioned in this article are really to help
with mobile phone thefts? It's probably more likely the kill switches will be
used to turn off phones in areas where people are doing things the government
doesn't like. Want to take a photo of that police officer beating your friend?
Sorry, kill switch.

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rdl
I'm completely un-surprised this came up in the context of a drug arrest.

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luckyno13
Honestly, I dont feel like the mandated kill switch is going to be an issue
for someone who is wanting to be able to wipe their phones in the case of
apprehension. The guys out there today already have a means ready, such as
rooting and having a wipe program ready.

~~~
dobbsbob
If you root an android phone then it's trivial for police to bypass the lock
screen. There also isn't any time to fiddle with a phone while guns are being
pointed at you and police are screaming orders not to move.

