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FBI cannot even look at your phone lock screen without a warrant, rules judge (9to5mac.com)
395 points by arkadiyt 12 days ago | hide | past | web | favorite | 103 comments





Precedents are interesting:

> Bond v. United States, 529 U.S. 334, 337 (2000) (concluding Border Patrol agent searched a bag by squeezing it)

> Arizona v. Hicks, 480 U.S. 321, 324–25 (1987) (holding officer searched stereo equipment by moving it so that the officer could view concealed serial numbers).

The idea seems to be that pushing the power button is what constituted a search, not taking a picture of the lock screen. Presumably if the lock screen was somehow already on at that point (which normally it wouldn't be) then it might be fair game to take a picture without a warrant.


That first one is interesting... I once stopped for a load of pumpkin bread before boarding a plane. I put it into my backpack. The tsa agent saw the buldge and started to punch my backpack! I yelled at him to stop and he said he thought it was a water bottle... Yeah, like it is a good idea to punch something you think might be explosive.

I’m pretty sure that most TSA employees forgot why water bottles aren’t allowed a long time ago (if they ever knew), and now are just searching for water bottles directly. That’s the consequence of hard and fast rules — people stop using their brains.

TSA employees are paid for security theatre - not actual security. I don't mean to denigrate these folks too much but ... they're not exactly the kind of people I'd hire to, say, walk my dog. They stand there and pretend they're doing "security" but what they're really doing is bureaucracy and political patronage.

Suppose for a moment we wanted to implement the kind of security that TSA pretends to represent. We'd thus deputize them as part of DoD (or DHS) and they'd carry MP5s and have actual training standards, weight standards, quarterly fitness reports, have to get security clearances etc. etc. They'd do drills at a mock airport, and we'd eventually do away with the "checkpoint" style of security at airports that's really just an invitation for a suicide bomber.

I once saw a TSA employee at LAX insist on putting a kid's balloon from Disneyland, that was clear and 100% see-through, through the X-ray machine. I watched this and, as I suspected, the TSA agent never even considered that because the balloon was filled with helium it of course wouldn't move through the machine on the conveyor belt and it got stuck. "Checkpoint" indefinitely shut down.

Security Theatre, indeed.


I agree with your assessment but I would not be that harsh with the TSA agents.

They are the cogs that need to make the security theatre run. I would bet that the vast majority of them know for a fact that their job is highly useless and only see it as a way to get some money at the end of the month.

What I still don't understand is how did we get here and why is it still going on even though most people would agree that it's a security theatre.


I think we can all play the stupid 24 hour news cycle headlines in our head at this point. [insert politician here] disbands security at airports! They don't care about lives!

Politics is so highly partisan that stupidity sticks around, because changing it would look bad. It's kind of ironic.

You're literally just describing security theater. Why would they need to carry MP5s? Because that's what you've seen in movies? MP5s are practically antiques at this point. Not every dude operating a bag scanner needs to be armed for the same reason your IT security doesn't need to be armed. They're not THAT KIND of "security".

Why do they need security clearances? For all that Secret-level intel they're getting briefed on? Or because you're under the impression that clearances are "security-ish"?

You want to mitigate "security theater" by making security wildly more dramatic and aimless. Someone needs to do the basic step of checking bags and passengers. That person does not need to be Jason Bourne.


MP5s are modern high-quality weapons.

They'd need MP5s in case a group of terrorists attacked the checkpoint, or got caught going through the checkpoint and decided on plan B (just kill as many people in the airport as possible).

They need security clearances to ensure that they're not going to help someone get a bomb onto the plane.


No, I'm describing how a serious country would implement security at its airports.

>Why would they need to carry MP5s? Because that's what you've seen in movies?

The MP5 is a "it just works" close battle weapon that is very popular for urban combat and, speaking from experience, is a weapon that is very balanced and is also gorgeous to look at. The greatest critiques against it probably have to do with the fact it's usually chambered in 9mm. Now, HK makes a bunch or other variants but the 9mm is the most popular.

>Why do they need security clearances?

Because I don't want people who harass me to open my baggage in front of them to have questionable contacts that could otherwise be a means for a would-be terrorist (or other state actors since Cold War II just kicked off) to get a bomb onboard an aircraft.

>You want to mitigate "security theater" by making security wildly more dramatic and aimless.

I want to do away with the security theatre, and replace it with a serious organization that is trained and understands what they're doing.


Did the agent eventually stick their hand into X-ray machine to fish out the balloon? If so, did they have the sense to at least turn off the machine first?

Why does the balloon being filled with helium mean it wouldn’t move through the machine on the conveyor belt? Just curious.

You're kidding, right?

The balloon would float and not stay in contact with the belt.


the charitable interpretation of this question is “Why wasn’t the balloon tied to something that could move through the conveyor belt?”.

Which is a much more reasonable thing to ask.


Although I was very tired when I originally posted this around 2:30 AM, I think my train of thought was that if they got it from outside of the machine in the conveyor belt --> inside of the machine in the conveyor belt --> it's the same mechanism which will get it to pop out of the other end.

But I suppose I was giving too much benefit of the doubt :)


The balloon floats and will not touch the conveyor belt?

Hey thanks for the answer. I can be too literal, so at the time I wasn't sure if that's what he was implying, or if there was some other special property about helium in a balloon in an X-ray machine that I didn't know of.

Yeah, it really feels like that. Obligatory xkcd: https://xkcd.com/651/

Eh, I also usually go through security with an empty metal water bottle in my bag, that would be pretty unpleasant to punch with any force.

That's hilarious. The attacker can exploit the fact that the TSA agent punching the suspicious bag and using him as an detonator. I don't know. Did he suffer a serious brain damage? You're looking for a potentially explosive material and punching it is the best way to test?

Are there explosive materials vulnerable to punching?

https://en.wikipedia.org/wiki/Flash_powder

From what I'm told my grandfather had fun with the cleaning ladies at the pharmacy he worked in by sprinkling flash powder ingredients on the floor, so that when they swept them up together the mix would go off, making a small poof, scaring the cleaning ladies.


I wonder how this works with "raise to wake" features modern phones have. If it goes to intent, it would be hard to prove that intent was to search the device.

I also wonder if a different legal distinction will be drawn in the level of protection you might receive in fingerprint vs facial recognition auth.

I think that’d fall under inevitable discovery. Even avoiding trying to look at the phone would reveal its lock screen.

Since simply moving a phone can turn on a lock screen, police could probably look at it that way, at the time of arrest.

> holding officer searched stereo equipment by moving it

That seems pretty similar?


It’s not. If you’re arresting somebody, you can empty their pockets.

This is about after that.

> Judge Coughenour ruled that the police were within their rights to look at the lock screen at the time of Sam’s arrest, as there are circumstances in which a search can be made at the time of an arrest without a warrant.

> Investigators conducting a search later, however, need a warrant, said the judge.


That is not what the judge ruled (though it is what the article said). The judge actually refused to rule on the police search at time of arrest:

Section II.B:

> The police’s examination of Mr. Sam’s phone raises different issues because the examination may have been a search incident to arrest or an inventory search—two special circumstances where the Government does not always need a warrant to conduct a search. Unfortunately, the Court cannot decide whether the police needed a warrant because the circumstances surrounding the police’s examination are unclear.

> ...

> The Court hereby ORDERS the parties to file supplemental briefing addressing the circumstances surrounding Office Shin’s and the Tulalip Police Department’s alleged examinations of Mr. Sam’s phone. That briefing should also address the relevant legal standard for searches incident to arrest and/or inventory searches.


What kind of phone does that?

An iPhone wakes up the screen if it detects movement it thinks is someone picking up the phone.

My iPhone does no such thing. Does it have to be a Face ID phone?

The feature is called Raise to Wake and (I believe) has been in every iPhone since the 6s. I thought it was enabled by default, but it’s in the Display & Brightness section in Settings.

My Samsung J3 does that.

I just wrote a similar thing. It is the action taken and state change at issue here.

We need more rulings like this and then we need to grant Snowden clemency.

Most people don't think his revelations warranted his treason. 7 years later, hardly any policy change has been implemented as a result of his leaks. Ideals aside,americans made a choice between freedom and security. He'll be tried for espionage no matter what. Impossible to grant him clemency without taking on the risk of similar leaks like his.

> 7 years later, hardly any policy change has been implemented as a result of his leaks.

Maybe not government policy, but private companies have gotten serious about encryption to reduce the amount of passive surveilance. Private networks are no longer assumed to be private.


The fact that intelligence agencies have been able to out maneuver the democratic process does not mean that Snowden's disclosures were unwarranted.

I think you have confused loyalty to the current leadership of US government spy agencies with allegiance to the American people.


That's not it, I was speaking practically. The American people as a majority contradicted Snowden's opinion. He was loyal to a minority, so one can make the argument that the majority elected legitimate government has every right to consider him a saboteur.

That said,I am very glad he did what he did because I believe the basic expectation of privacy surpasses the people's right to have a government they elected that represents the voice of the majority. Democracy and evem the rule of law itself exists to preserve and enable life and liberty.

On the flip side, the intelligence community would argue a governments primary directive is to ensure the security of it's people, and that triumphs democracy.

In the end a government exists the way it does because the military and the rich are allowing it to. They decide who is right. In this case the military's inaction against the NSA means they don't consider their hostile actions against the people as illegitimate or as a rogue insider threat to the constitution. The rich who own coeporatons also stayed in the US to the large part, which means they are OK with what the NSA has been doing against them and their customers,even if it was illegal. If either elements as a collective rejected the NSA's legitimacy the gov's position with the NSA and Snowden's ability to return safely would be different.


It's a pity for him though that his situation doesn't seem to be negotiable.

The de facto stance of America is that the revelations were not shocking enough to alter the status quo. So post-hoc one could imagine that the exposed NSA could have just been a transparent NSA from the start. But the way the story unfolded, despite not shocking the system deeply, he's still left playing the part of the traitor. He probably did make life more difficult for the NSA though, as I'm pretty sure a lot of people ramped up cybersecurity.


His position revolves around his own claims about his revelations. I think a future administration might convict him as a traitor and pardon him. But I don't think he can avoid a trial if he returns.

>The American people as a majority contradicted Snowden's opinion

It took me 5 seconds to find this from Pew Research:

>A majority of Americans (54%) disapprove of the U.S. government’s collection of telephone and internet data as part of anti-terrorism efforts,

https://www.pewresearch.org/fact-tank/2015/05/29/what-americ...

Just claiming that people agree with you does not make it so. By your logic the NSA has committed treason because a majority of Americans disapprove of what they're doing.


Treason is when you aid a foreign enemy or commit sedition,the NSA did not do that.

I have seen different polls that favor the FBI regarding backdooring iphones (to contrast with your poll).

If the law and the people's opinion disagree with their activities then I would classify them as a rogue insider threat group, more like rebellion and sabotage.


It’s my understanding Snowden’s own preference is for a trial, and that it should have guarantees in place to ensure it is a fair one, because he reasonably expects to win.

Snowden's legal situation is up to him at this point. The only way for whistleblower precedent to be set is for him to stand trial.

Current law does not allow him to raise the defense of whistleblowing at trial. This is ironclad precedent and won't be overturned without a new law being passed or the prosecution agreeing to it.

The government would get to tell the jury he gave away XYZ classified documents, and he would not be allowed to even mention why and would have no chance of getting that overturned on appeal.

Snowden has said he will come back and stand trial if he is allowed to raise whistleblowing as a defense. The government has not taken him up on that offer.

edit: First source google had to offer: https://whistleblower.org/in-the-news/wsj-op-ed-why-edward-s...

Excerpt:

>[M]embers of Congress, journalists and advocacy groups keep repeating the same argument: Mr. Snowden should turn himself in, mount a solid defense and all will be righted at trial.

That’s a fantasy. I served as legal adviser to two high-profile whistleblowers between 2010 and 2013, former NSA senior executive Thomas Drake and former CIA officer John Kiriakou, both charged with espionage. I also witnessed last year’s court-martial of U.S. Army Pfc. Bradley Manning (now known as Chelsea Manning), who faced charges of espionage and aiding the enemy. Here’s a run-through, to the extent that I am allowed to offer, of how such a shadowy proceeding would unfold.


It's really up to us citizens that benefited from his whistleblowing to bail him out. But of course we don't because we're not as good a society as we might be.

Could you elaborate? His revelations were that the government kinda does what it wants despite the law; what is it that is up to me (or any other individual) to right the wrongs of that same government?

Any democratic government is simply a body elected to represent the wishes of the people.

If the government isn't righting its wrongs, it's because you (not necessarily you specifically, but "the people" as a whole) have explicitly put in power the people who are doing the bad things.

This is everybody's fault. Yours included. We all enabled this to happen.

That's the beauty of a democratic system. It clarifies and cuts through to the core of our culture. Americans fear the idea of foreign terrorists more than we fear privacy encroachment, and thus, we were delivered the results of that belief.

The system worked! It represented our wishes perfectly. The problem isn't "them" (the government). It's us.


That may have been true for Americans living two hundred years ago when constituents voted for the people who birthed the two party system, but it certainly isn't today. Gerrymandering of House districts, the limit on the number of Representatives, the nature of the Senate in our bicameral legislature, and the electoral college all guarantee that some votes will count significantly more than others. That's not a democracy, it's a facade that replaced democracy a long time ago (and one could argue was never a democracy to begin with, since many people alive today gained the right to vote in living memory).

There's two options when your government isn't doing what you (read "the people") want them to do:

1) Vote them out

2) Revolution

I'm rather a firm believer that option 1 is still on the table and we don't have to resort to likely bloody methods. But in either case it is up to the people in the end. I am not convinced that there's been coalitions formed to actually do #1. I'm not actually convinced most people are upset, even though I think they should be.


Yes, it is a mess.

Still on us though. Unless we want to see the nation invaded, there really is no one else with standing to address the growing problem.

A class level action is needed. When things reach clearly, can't miss it, can't live with it levels of unacceptable, we may see that happen.

Or, maybe we see just enough placating and theatre to trundle along for decades.

Last time we moved like that, it was the 30's.

People struck the crap out of basically everyone, handing FDR position to go and get the New Deal done. Those strikes and actions were illegal and legal. A whole class in high solidarity acting right out.

His follow on was never seriously discussed and in the decades since, we have seen many moves to prevent a similar scenario from happening again.

What we do not know is whether that history can be repeated.

The response today might just be brutal.

It is all terribly expensive either way too.


We are not a democracy nor were we supposed to be.


They are clearly reading Federalist 10 out of context. He clearly says, among other things, there is a mean between to little representation vs to much.

> It must be confessed that in this, as in most other cases, there is a mean, on both sides of which inconveniences will be found to lie. By enlarging too much the number of electors, you render the representative too little acquainted with all their local circumstances and lesser interests; as by reducing it too much, you render him unduly attached to these, and too little fit to comprehend and pursue great and national objects.

A democracy doesn't have representation. So while his definition maybe different than what we tend to understand today, neither is he arguing that "republic" is the same as what we mean by "democracy" today.


"It is the first responsibility of every citizen to question authority." -Benjamin Franklin

Protests and social pressure do work with the right amplitude.


There is no evidence that Benjamin Franklin ever said that. Please do not perpetuate spurious quotations.

Didn't realize that it wasn't sourced to him. I still think it's a good quote either way and given my understanding of Franklin from reading his autobiography, I reckon he would agree with it in spirit. He spent much of his life pushing against the British Empire and fighting for liberty.

[flagged]


It's hard for me to read the article you linked and draw any conclusions whatsoever about his motives. The whole article is just a series of vague insinuations hoping the reader is stupid enough and lacking in enough critical thinking skills to see two apparently contradictory facts like "he liked attention but played a lot of video games" and from there jump to the conclusion that he's a villain.

Is this supposed to be anything other than some sort of ad hominem? Why should his motives or character matter?

I see nothing in that article other than random tidbits about his life.

[flagged]


(That was an invitation for you to explain why you thought the article showed some sort of ulterior motive, if you didn't catch it.)

How many citizens outside of people who understand tech actually understand how big of a deal it was? Also, the media hardly covered it and pretty much presented him as a traitor every time they did. What percent of the U.S. population would you guess has heard of the name Edward Snowden?

I think it's worse than that. The things Snowden leaked were simply the details of what I would think most people assumed to be true anyway. Not in a conspiracy theory way, but just an accepted thing. Most people don't really know the difference and supposed limitations of each three letter agency's powers.

Whether that's due to the media's portrail of them in film and TV over the years with their omnipotent powers or just the view that the government is an all seeing entity.

So in most people's view he just leaked the governments methods, not the fact they were doing it (and abusin their power in doing so). Because of this the Government can spin this as him leaking their secret sauce rather than them being in the wrong.


This.

A high percentage of Americans are informed by domestic "news" and that newstainment has declared Snowden to be the bad guy as you said.

Among ordinary people not into politics and or tech, few know his name. If they do, they almost always also talk about him being a traitor, threat, etc.


Snowden disclosed programs that were unsavoury to some. But that doesn’t mean they’re illegal (even if only by reason of black letter law technicality). That’s not to mention all the other unrelated classified information. It’s not surprising that he has zero defence under whistleblower laws.

To take advantage of whistleblower laws (or at least, gain public sympathy as one), the criminality you’re uncovering would need to be far, far worse.


The NSA has been revealed to gather and store crazy amount of US citizens data with zero oversight.

That was completely illegal at the time, and I hope that it still is.


We may want that to be true, but some US courts have disagreed.

https://www.lawfareblog.com/second-circuit-rules-united-stat...

See this for one recent decision indicating that the NSA bulk collection program was both constitutional and legal.

The unfortunate reality is that it falls into a legal grey area and has, in fact, been held by certain courts to be legal.

Which comes back to my original point - any whistleblower who wants to exit with a clean slate really needs to be uncovering unambiguously and horrendously illegal activity. “Possibly illegal” PRISM just wasn’t bad enough for Snowden to get the political or legal protection of public sympathy.


Damn, that’s crazy. Thanks for sharing this article.

> Which comes back to my original point - any whistleblower who wants to exit with a clean slate really needs to be uncovering unambiguously and horrendously illegal activity.

The issue here is that nothing will ever be “unambiguous and horrendous illegal” enough regarding NSA behaviors, given that the goal post is always moving.


Want to start a foundation?

He can be pardoned right now without ever being put on trial. GP didn’t say anything about setting precedent.

Subjecting himself to the risks of trial would be insane, considering the tremendous amount of illegal things that were done (and continue to be done) to Assange.


I think we all know that his chances of a fair trial are close to zero.

Yup. But him making a point of it does raise general awareness.

Good move on his part given his current scenario.


But they can get your browsing history without a warrant. What gives?


As with all questions constitutional law, it is not possible to make such a broad statement [1].

We are going to end up with some really weird law if we leave all of this up to the supreme court. At this point the dynamic is: congress gives the IC whatever it asks for, and sometimes the supreme court walks them back a little.

We need to get congress to regulate this stuff... pronto.

[1] https://www.nytimes.com/2018/06/22/us/politics/supreme-court...


>> “ We are going to end up with some really weird law if we leave all of this up to the supreme court.“

That’s a pretty bold claim, one which I am not aware of any examples of. High courts of any meaningful definition of such, regardless of country, if truly a legal court with fair rules, generally produce much clearly rules than those create by: general public, elected officials, professional governments employees, interest groups, private parties, etc.

For example, take a few mins, even hours, try drafting what to you would be fair, clear, complete, stand the test of time, etc. — then post it somewhere online, post in to HN, and comment here you have. I’ll review it, post my review online.


I understand from this link that they can look into cloud-uploaded browsing history without warrant, but not into the local history stored on the phone

Correct, unless you give your phone to a third-party - for example, to get repaired:

https://www.eff.org/deeplinks/2018/03/geek-squads-relationsh...


Do phones upload your browsing history to the cloud? That seems unnecessary.

What about Border Patrol within the 100 mile perimeter zone? Do they still get a blank check to wipe their ass with the constitution?

Even more fun if you're a foreigner visiting and no constitutional protections apply to you in the first place.

Haven't had my phone searched yet but the last two times I've crossed the border in the Niagara area for short ski trips I've had my car searched, been held for an hour, and a bunch of hostility directed my way.

The fear that the next time around they'll force me to unlock my phone and waltz through my Facebook profile etc. means that even after the border closure and lockdown is lifted, I just won't be coming to your country and spending money there anymore.


This ruling has no impact on the laws related to border searches.



From my reading, they could look, and if the phone display is on, fair game.

The key judgement here appears to be whether some action, and or change in the state of the person and their property, made the information available.

Entirely passive means still apply, however briefly.


But those international chats? Yeah the whole DoD is gonna need to see those, no warrant required.

[flagged]


Off-topic. General Flynn pleaded guilty to lying to the FBI in an in-person interview.

Did you really just make an account to comment on HN about General Flynn? What's behind that??


I’m looking forward to learning so much more around the circumstances of General Flynn, in particular what the IC community (foreign and domestic) has been up to when they thought nobody was watching.

Hopefully transparency doesn’t end, even if it means a trial!


Why is the word “even” in the headline? What does that “even” mean?

It's used to emphasize the limit that would be suprising to most people.

"He can't even throw a ball one metre!"


Means that it's somewhat surprising. A regular person would likely consider looking at a lock screen to be no big deal.

In this case however, the word "Skeezy" displayed on the lock screen was apparently a link that connected the owner to what was being investigated, and so material to the case.


I get your point but I'm guessing it's based on assumed context. The headline is implying they assume that everyone just assumes the FBI can do whatever they want to with your phone. But it turns out they can't even look at the unlock screen.

While it is related to common uses of the word "even", the construction would usually be thought of as "not even", a single unit in two words. Other languages express "even" and "not even" differently from each other.

Although I'm favorable to this opinion, I don't treat anything in the 9th circuit as consensus anymore. Especially at federal district courts geographically within them. 2nd and 4th circuit rulings just have so much more weight in the direction of the country. 9th circuit just reminds you how irreconcilable 40% of the country's land mass is with the winning administration.

Weird tangent. The ruling was not handed down from the 9th circuit. It was the Western District Court of Washington State. (https://www.wawd.uscourts.gov/). 9th circuit is an appeals court.

I don't agree with everything the commenter is saying but they are pointing out that the Western District Court of Washington is a federal district court under the 9th Circuit's jurisdiction, so for this new rule to have significant weight it would need to be affirmed by the 9th Circuit

Correct me if I'm wrong, but wouldn't that would mean it would need to be appealed? Why would the defendant appeal when the court ruled in their favor?

You're right, it would need to be appealed. The defendant would not appeal, but the government could, and likely will if it views this as a significant burden to police practice. An important thing to note is that federal district court decisions are not binding on other federal district courts (the decisions are persuasive authority, but do not force another judge's hands). Any other judge could decide not to follow this rule. Only if the rule is announced by the 9th circuit would district courts in the 9th circuit have to follow the rule.

My main point is that while this is a promising decision, it is very far from the law of the land. And, as the original commenter pointed out, even if the 9th circuit upholds this ruling, the 9th circuit is only one circuit among many, and is often viewed as the most liberal circuit and not necessarily representative of the federal judiciary as a whole.


It’s a motion to suppress not a final ruling and so the government can appeal the granting of the motion (either now or at a later stage if they do not win).

Even if this decision is cited as case law in another case (i.e. somebody leverages the precedent) and a judgment is made, that judgment can be appealed arguing that the lower court was wrong in this instance, and then it would be up to the 9th Circuit to decide.

After the 9th Circuit makes their decision, it could still be appealed to the Supreme Court (which I think is the country’s overall direction the root commenter was referring to).

This kind of issue will come up very frequently in court because everyone has a phone, and it’s very easy for a lock screen to contain incriminating notifications. That kind of evidence is often decisive in court, which makes it an attractive/persuasive argument for appeals. Very likely this will end up in Supreme Court, which means decisions in lower courts are less consequential. The lower courts aren’t going to get to decide this one.




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