"Modern cell phones are not just another technological
convenience. With all they contain and all they may
reveal, they hold for many Americans “the privacies of
life,” Boyd, supra, at 630. The fact that technology now
allows an individual to carry such information in his hand
does not make the information any less worthy of the
protection for which the Founders fought. Our answer to
the question of what police must do before searching a cell
phone seized incident to an arrest is accordingly simple—
get a warrant."
"These cases require us to decide how the search incident to arrest doctrine applies to modern cell phones, which are
now such a pervasive and insistent part of daily life that
the proverbial visitor from Mars might conclude they were
an important feature of human anatomy."
NSA wiretaps differ in two key ways:
1) At least in theory, they are intended to capture foreign communications. People not on U.S. soil who are not U.S. citizens enjoy no protections under our Constitution.
2) This case is based on interpreting the "search incident to arrest" exception to the 4th amendment's warrant requirement. The essence of the exception is that while a warrantless search of someone's person is potentially the most egregious of fourth amendment violations ("person" being specifically enumerated in the text of the 4th amendment), it is nonetheless reasonable in the context of a search incident to arrest, where it might be necessary in order to secure the arrestee, who might have a gun or throw away evidence.
An undersea cable is totally different. It is not a search of anybody's "person" but a search of something containing signals that people are transmitting out into the world. There are four specific things enumerated in the 4th amendment: someone's house, person, papers, and effects. It is clear how searching a phone in someone's pocket is a search both of their person and their effects. But signals transmitted out into the world does not fit neatly into any of those four categories. For example if those signals were transmitted via radio versus fiber optic cable, would it be a "search" to listen in on them?
Now, the language of the case is relevant in that it suggests the Court may be open to a more expansive reading of the 4th amendment when it comes to digital data. There is no way the conservatives on the court would favor extraterritorial application of the Constitution with regards to undersea wiretaps, but it could bode well for challenges to domestic surveillance.
 Incidentally, as the opinion notes, the touchstone of the 4th amendment is "reasonableness." This fuzzy word is used explicitly in the Constitution to allow judges to engage in line drawing and balancing the interests of law enforcement with privacy rights.
From a privacy right in documents held on my behalf by a third party it is a very small step to a privacy right in documents in transit from one place to another, especially if encryption has been used to protect the documents in transit. Thus the Court seems to be angling towards a new third party doctrine in which people have a reasonable expectation of privacy (and hence fourth amendment protection) for documents held on their behalf by a third party provided that the third party has undertaken to keep the documents private.
Your question about radio versus cable is simple to answer. Data transmitted by a cable requires physical access to the cable to intercept, while a radio broadcast is, by its nature, sent to anyone capable of receiving it. Hence it is perfectly reasonable to argue that anyone transmitting data via radio has given up any expectation of privacy in that data, but that this has not occurred for data transmitted through a private cable. Of course most people transmitting private data via radio will encrypt it, and encryption clearly signals an intention to keep the data private.
An undersea cable is the private property of the company that owns it. If that company is a US person then obviously it enjoys constitutional protection. Even if it is not, the new third party doctrine I talked about above would protect the documents of US persons from arbitrary US government search even when held or transmitted by a non-US company.
However, I don't think the opinion contradicts Smith v. Maryland. There are two aspects to that case: 1) the user has knowingly exposed the phone number to the phone company; 2) the phone company doesn't just have access to the phone number, but actively processes it for billing purposes. I think the second prong distinguishes this case from a typical cloud service, which the court analogizes as being an extension of the local storage of the device.
Still, I'm quite astounded at the direction of the discussion on page 21, and interested to see how the court will draw the contours. I think the "right answer" is to extend 4th amendment protection to documents in the cloud when "the third party has undertaken to keep the documents private" but not, e.g., when it mines those documents for commercial purposes. This is straightforwardly analogous to a safe deposit box, where the bank holds the box, but doesn't open it up and make use of its contents.
> The United States concedes that the search incident to
arrest exception may not be stretched to cover a search of
files accessed remotely—that is, a search of files stored in
the cloud. See Brief for United States in No. 13–212, at
43–44. Such a search would be like finding a key in a
suspect’s pocket and arguing that it allowed law enforcement to unlock and search a house. But officers searching a phone’s data would not typically know whether the information they are viewing was stored locally at the
time of the arrest or has been pulled from the cloud.
Slip. Op. at 21.
There's two ways to read the first sentence.
1) We will assume for the sake of argument that documents in the cloud are protected, as the government says.
2) Even the government admits that documents in the cloud are protected.
Because the Court follows up with its own analogy ("like finding a key in a suspect's pocket"), I think reading (2) is more natural. The Court isn't just restating the Government's opinion, but acknowledging the shared premise, with the implication that the Government must share reasoning that logically flows from that premise.
a. I hold a picture on my mobile phone. I transmit this picture using the phone's built in radio to a friend of mine.
b. I hold a picture on my laptop. I transmit the picture to a friend using my internet connection provided by my ISP.
I get that the government cannot access my phone and pull the picture from it (that would be a warrantless search of both my person and my effects). However, once I send the picture into the world, why does it matter whether I used an undersea cable or a communication satellite or a carrier pidgin? If the Supreme Court rules that neither my phone nor any communication to/from it may be searched without a warrant, then it should follow almost immediately that the same rules should apply to any consumer communication device, no?
Edit: in both cases above, let's assume that my friend is not a US citizen and is not located in the US.
Except they did, by passing it to other agencies and then falsifying their chain of investigation through "parallel construction".
The rule is more nuanced than that. Until you cross all border control points then you can still be searches as if you were crossing a border. The rule you're talking about is that these border control points can be within 100 miles from the border to allow for efficiency of operation of border controls. Imagine if literally every border crossing to Canada had to have a dedicated CBP outpost manned every hour that the road itself is open.
Therein lies IMO one of the big issues with US justice: the law is interpreted literally. But the aim of the original law (what it attempted to protect or achieve, i.e. the citizens' privacy) is not really deemed relevant.
In the US legal system, the intent of the law is considered quite relevant in the application of the law.
These are not the only views in play in the judiciary, but they are important ones nonetheless. I recommend a book by Richard Posner called 'How Judges Think' which offers and accessible and thought-provoking view of the clashes between different philosophies or jurisprudence.
So while there might be a committee of 14 congressmen that intend a law to act a certain way, there is a larger group that then proceeds to debate and enact the law, that may not share that intent, but may share the intent as codified in the law, which may be narrower or broader than the intent of the people who wrote the legislation itself.
The Fourth Amendment was intended to keep the the Founders' business interests secure, and prevent, say, search and seizure of Samuel Adams' smuggled goods.
This so-called "law enforcement need" is the creation of a few odd ducks such as Richard Nixon and Nancy Reagan, and has caused more damage to privacy than the NSA ever could.
The Fourth Amendment was passed after there was ever a threat to Sam Adams's goods (indeed, how they can be "smuggled" when they were fully legal under Masschusetts law?). The reason the Fourth Amendment was an Amendment and not already in the Constitution was because the Federalists (predominantly from New England) felt the Constitution already covered those rights implicitly (luckily for us, the anti-Federalists forced them to pass a bill containing specific rights).
Where Sam Adams comes into the Fourth Amendment is that the new Americans resented the old writs of assistance that gave British customs officers incredibly wide powers to search (and even seize IIRC) anything they wished. So the Fourth Amendment removed that concept completely by directing that any unreasonable search of a person or their house, papers or effects much be done under a warrant that was specific in nature.
I don't know where the libertarian meme that the colonial Americans were fighting against government or the law came from. There were many reasons they fought, but you can look at the Declaration of Independence for a good overview as to the why. But in short, they fought for their rights as Englishmen, not against the idea of law or order.
The debates that did occur about government occurred about things like the balance of power between state and national government (c.f. the Tenth Amendment), not with the idea of common law (which the new nation adopted wholesale from the U.K.) or of government (which the colonists had been practicing on their own for more than 150 years by then).
It prohibits unreasonable searches outright (it doesn't require a warrant for unreasonable searches), and also limits warrants to certain standards. (Implicitly, it has been held to also mean that warrants are usually necessary for a search to be reasonable, since if there were no generally-applicable warrant requirement for reasonableness, the limitation on the conditions in which warrants may be issued would be meaningless.)
And it's ominous for the NSA not just because the reasoning is directly applicable to some NSA programs, it's also that all 9 Justices signed on to an opinion that is more than assertive; it is scathing and sarcastic. E.g., Justice Roberts mocks the government for calling a cell phone search 'materially indistinguishable' from a search of a wallet, purse, or address book. That is "like saying a ride on horseback is materially indistinguishable from a flight to the moon" (p. 17).
This line alone would make an NSA lawyer blanch: "We cannot deny that our decision today will have an impact on the ability of law enforcement to combat crime... Privacy comes at a cost" (p. 25). NSA lawyers should be seriously concerned that in the criminal context, the Court unanimously announced a broad rule that the government almost always needs a warrant to search even an arrestee's cell phone - and then blithely dismissed the government's arguments about the after-effects of such a rule, saying, "Oh well, privacy comes at a cost."
If you read this ruling about cell phones Roberts made it clear they were declaring the officer's actions to be a search, hence requiring the warrant.
And on that threshold question of whether any NSA surveillance programs are "searches" under the meaning of the Fourth Amendment, the Supreme Court would ask if a challenged program violates American citizens' "reasonable expectation of privacy." Much in this opinion would be directly relevant to that question.
And in the future, anti-NSA plaintiffs will be able to use the Supreme Court's legal analysis of the inherent invasiveness of cell phone searches.
1) Most people "all over world" are not US citizens and therefor not covered by bill of rights "that our founding fathers fought for" (according to US Government). NSA does (claim) to attempt to identify communications of US citizens it intercepts "overseas" and doesn't look at them without cause.
2) NSA breaks the law. Routinely it would appear.
Just because its a reason they give, doesn't make it valid - but I guess thats what your #2 was addressing =)
Note I'm not making a normative statement here; rather I'm agreeing with the previous statement that this is FedGov's claim about the extent to which the BoR applies to non-US citizens abroad.
E.g. while it hasn't reached the Supremes, a bunch of states that have shall issue concealed carry regimes have been forced by the courts to extend these to permanent resident aliens (AKA Green Card holders), who in general are pretty much treated as citizens except they can't vote and of course can be deported.
btw "(according to US Government)" should have made it clear that it was a reported fact and not a value judgement by the author, me.
Right now, one of the biggest problems with the NSA for civil liberties is that it routinely cooperates with other domestic law enforcement agencies such as the FBI and local law enforcement.
With this is mind, we may also want to consider pushing for laws that isolate the NSA from domestic law enforcement by making any communication between the NSA and domestic law enforcement a crime without oversight from the public. A policy like this would not be without precedence, since we use a similar mechanism, the "chinese wall", in the financial world to separate departments of financial institutions that have a conflict of interest. The beauty of a "chinese wall" even though its not 100% effective is that there is absolutely no ambiguity in the mind of the individual when they themselves are doing something illegal/unethical.
The citizenry of this country should seriously consider erecting such a large wall between the NSA/CIA and domestic law enforcement that one cannot talk to the other in any form without mediation (at work or outside of work) without it being a felony.
A policy like this would go a long way to preventing abuses like parallel construction since it makes an activity at the human level a felony. Policies that aim to police organizational behavior are never as effective as policies that aim to police the activity of rank and file employees, since the enforcement of the former suffers from diffusion of responsibility. Specifically saying "Activity X is illegal and you'll be held responsible regardless of whether or not your superior(s) commanded you to do something" is a great way of curtailing institutional problems. Show me a corrupt institution and I'll show you that it is an institution where none of the crimes are policed at the level of the individual at the bottom.
Isolating the NSA is as important for freedom and liberty in the world as passing laws that police its organizational behavior.
That being said, we should still push for curbing all the civil liberties abuses currently practiced and putting rules in place preventing future abuses.
One could even argue that the Posse Comitatus Act already mandates such a wall.
At the time Posse Comitatus was passed, I don't think anyone ever envisioned that technology would one day permit pervasive ever-present surveillance.
Are there any parts of the act that specifically attempt to curtail supporting enforcement by other means using language that could apply to information sharing techniques used in parallel construction?
But the question isn't so much whether one could make the argument as how many people would be likely to be sympathetic to such a broad reading of the act. An increasing number, perhaps...
Most politicians in DC have no interest in stopping what the NSA is doing, so it isn't going to get stopped.
Because the United States and California agree that these cases involve searches incident to arrest, these cases do not implicate the question whether the collection or inspection of aggregated digital information amounts to a search under other circumstances.
A cellphone is just like a briefcase 30 years ago. It has all my letters (email), work papers (files) and other personal info like an address book.
My point is with my lay understanding of the law, I'm not sure the presence or absence of a warrant has much to do with that classification.
Having an app that deletes evidence when removed from safe areas (e.g. home, work, the commute path, etc.) would probably pass muster though, since there are many purposes for that which would not involve destroying evidence that might pertain to a legal investigation.
I think good old device encryption is the way to go. Only a warrant can make you provide the password for them to access your phone, and even then you could withhold it for whatever reason (though not without consequence).
I rather legal opinions not fall back on founder-worship for their legal basis...
The founders explicitly didn't include any rights in the constitution. The Bill of Rights was begrudgingly added later as a compromise after the constitution was approved by the states.
Furthermore, the right to privacy is really not on the same level as the other rights (where things are more black and white) and the 14th amendment was passed in the 1860s - well after any "founders"
> Even less sophisticated phones like Wurie’s, which have already faded in popularity since Wurie was arrested in 2007, have been around for less than 15 years. Both phones are based on technology nearly inconceivable just a few decades ago, when Chimel and Robinson were decided.
Slip. Op. at 9.
It's not every day that a conservative Chief Justice writes an opinion predicated on a changing world diminishing the scope of earlier decisions.
Your implication seems to be that conservatives are the ones pushing weak privacy laws. I'll grant that many conservatives have been weak on privacy protection, which is one of the reasons that I'm a libertarian. But the primary parties arguing here for nearly unlimited cell phone search were "The Obama administration and the state of California, both of which sought to justify cell phone searches...".
Not to mention that it was Bill Clinton who was behind the appalling push to expand no-knock raids by police for drug busts.
Even for pot smokers who didn't inhale.
So you can say "the world has changed and now we have to protect cell phones" to say it's a progressive position, or "people still carry information and the government still can't search it without a warrant" to say it's a conservative one.
It's true the outcomes of conservative ideology are often what you say, but that doesn't make it a goal anymore than the fact that there are welfare cheats makes cheating on welfare a goal of progressive politics.
Those in power want to expand that power. I'm not in the US and we have the same here.
But it also shows how long it takes for the legal system to fix these problems. I wrote these articles over 7 years ago about how cops in San Francisco and elsewhere were searching phones a decade ago, and the practice has likely been going on for even longer:
This may be a lesson for HN readers trying to solve privacy problems.
Option #1, enacting a new law, tends to be an exercise in futility: California rejected a fix to cell phone searches in 2011, and Congress did nothing on cell phone searches (nor has it enacted a law to fix warrantless email searches or rein in the NSA post-Snowden).
Option #2, relying on the courts, may work, but it may not. It took 10 years to fix cell phone searches, and only after millions of dollars worth of concerted advocacy by EFF, ACLU, etc. And it might have gone the other way: remember the courts have blessed the erosion of Fourth Amendment protections because of the War On Some Politically Unpopular Drugs.
Option #3, creating technology, works as soon as you can deploy it, and is subject to the laws of mathematics rather than whether a SCOTUS justice is a crankypants today when it comes to privacy. Of course the NSA may try to subvert your encryption/anonymizer/etc., but its attempts may fail, and, besides, intelligence agencies already subverted Congress long ago. :)
Many of these issues are both technological problems and political problems. Neglecting either is not a particularly good strategy.
You're right that option #2 can work: EFF has represented me and a dozen or so other plaintiffs in a case where we won at the Supreme Court, and the ACLU has represented me in two cases. I'd be a hypocrite if I didn't admit the possibility of winning is real. :)
But if you argue for option #1, history matters: what significant pro-privacy law has Congress enacted in the last 15-20 years? (I can name plenty that have gone in the other direction.)
More to the point, HN readers are more likely to be in a position to pursue option #3. We do have a few lawyers and law students here, but far more engineers, CS students, and programmers.
Never neglect legislation (incumbents won't) but definitely focus on #3.
* Porn exists on the Internet! LET'S PASS A LAW BANNING IT. That became the 1996 Communications Decency Act.
* Images of adult porn actors can be morphed to look like minors! LET'S PASS A LAW BANNING IT. That became the Child Pornography Prevention Act.
* U.S. citizens can use encryption that can't be easily broken by FedGov! LET'S PASS A LAW BANNING IT. That became the bill approved by one House of Representatives committee, which did not become law.
* Spam exists! LET'S PASS A LAW BANNING IT. Except the Can-Spam act actually legalized spam with opt-out mechanisms and overruled state laws that actually did ban it.
* Internet piracy exists! LET'S PASS A LAW BANNING IT. The No Electronic Theft Act made it a federal felony punishable by years in prison to share a copy of, say, Microsoft Office with your friend.
* Gambling exists on the Internet! LET'S PASS A LAW BANNING IT. That became the Unlawful Internet Gambling Enforcement Act of 2006.
* Porn still exists on the Internet! LET'S PASS A LAW BANNING IT IN SCHOOLS AND LIBRARIES. That became the Children’s Internet Protection Act.
* U.S. citizens still can use encryption that can't be easily broken! LET'S PASS A LAW REQUIRING SURVEILLANCE BACKDOORS IN SOCIAL NETWORKS, EMAIL PROVIDERS, PHOTO SHARING STARTUPS, ETC. That became the FBI's draft legislation; my article disclosing details in 2012 is here: http://www.cnet.com/news/fbi-we-need-wiretap-ready-web-sites...
Politicians are reactionary. Some of the above laws did not get enacted or were struck down; others are on the books today. We shouldn't count on congresscritters to do the right thing when the law is provably, laughably out of date. In fact, generally they do exactly the wrong thing. :)
Warrentless cellphone searches are reasonable if only it falls within a specific exception to Fourth Amendment's warrant requirement. See Kentucky vs King.
So, does that mean if police knocked on my door suspecting I might delete sensitive data on my phone before they get to it, are they still allowed to do warrantless search of my cell phone?
EDIT: DO not start fucking downvoting just for the heck of it. May be I didn't understand it well, does that mean I can't ask a question here?
> And, at least as to remote wiping, law enforcement currently has some technologies of its own for combatting the loss of evidence.
And from the rest, once the officers have removed the phone from your person, there's no longer a danger of you wiping it. Of course, I don't want to suggest in the least way that officers will actually /follow/ this guideline, and that lower courts will uphold it, but there you go.
Of course, the only time that kind of stuff gets vigorously challenged is if the defendant has top-notch legal representation. Public defender's typically would rather just plea-bargain it out.
Still, it's great progress for keeping everything above board as much as possible.
For example, if a cop says "I'm pulling this person over because they have a busted tail light", it's hard for them to make a claim that they thought the person could have been some sort of drug kingpin that needed further searching.". Compare this to "I'm pulling this vehicle over because I just saw it leave a known drug house."
The more we can recreate "presence" at a particular time and place when a crime (by an individual or by a LEO), the more information judges and juries will have to deliberate if suspicion was in fact reasonable, and not based on some arbitrary detail like the race of the person being stopped.
Recreating presence makes it so someone no longer has to depend on top-notch legal council to artfully argue why they are innocent. It should bring down the legal costs of both the prosecution and the defense, while achieving greater justice.
It's a lot harder to start a widespread, hard-to-undo abuse of power when you have to ask permission each time you exercise that power. A single abuse of power can be (hypothetically) remedied in court after the fact. Unfortunately, the situation changes when the problem grows to "general warrant" size. At that scale, you tend to need armies, not courts.
So lock your phone immediately. Give remote wipe to a trusted family member if you are truly worried.
I believe the idea is that they can try to disable the lock in order to keep the evidence available for use after getting a warrant.
They don't even need that much at the rate most warrants are sworn out.
in any case, it's good to see this decision. perhaps it's the beginning of the legal system recognizing that electronic data is private information and should be protected.
edit: source -- https://news.ycombinator.com/item?id=7931548
[edit: to the totally confused. My comment is political satire. And it purposefully misidentified which "source" you were referring to for purposes of bitching about USA law enforcement.]
e.g. "a confidential source" that we saw on here yesterday.
That implies some confidential source was featured on HN yesterday. Linking to that post should do none of those things.
In short, he was saying that we can reliably expect many warrants to have been obtained by law enforcement lying to judges. Based on the information (lies) presented to the judges, they're going to approve the warrant, because they operate on the premise that law enforcement wouldn't lie to them.
Both opinions are great and illuminating reads!
I wonder if this extends to the NSA's warrantless collection and to what extent.
"We cannot deny that our decision today will have an impact on the ability of law enforcement to combat crime...Privacy comes at a cost."
Roberts looked squarely into the "police efficiency" argument and shot it dead. This was a remarkably scathing opinion of law enforcement's methods w/r/t cell phones. I wonder if we'll see this used as part of the broader challenge to the NSA. The EFF was just gifted an incredible opinion to strengthen their case(s).
It was only a matter of time until the issue of privacy was addressed, and now that it has come to pass then the issue will cause polarization in politics. Whether this is good or bad is up to you.
"Every subject has a right to be secure from all unreasonable searches, and seizures of his person, his houses, his papers, and all his possessions..."
Mobile phones and computers are an extension of our brains now and peering into that is more invasive than papers and possessions of the past as they track metadata and behavior that people don't explicitely want to be recorded.
Out of curiosity, does anyone here know the current state of legal challenges that aim to stop the practice of parallel construction?
Ellen Canale, a Justice Department spokeswoman, said the agency would work with law enforcement to ensure "full compliance" with the decision.
"We will make use of whatever technology is available to preserve evidence on cell phones while seeking a warrant, and we will assist our agents in determining when exigent circumstances or another applicable exception to the warrant requirement will permit them to search the phone immediately without a warrant," Canale said.
> Recent technological advances similar to those discussed here have, in addition, made the process of obtaining a warrant itself more efficient. See McNeely, 569 U. S., at ___ (slip op., at 11–12); id., at ___ (ROBERTS, C. J., concurring in part and dissenting in part) (slip op., at 8) (describing jurisdiction where “police officers can e-mail warrant requests to judges’ iPads [and] judges have signed such warrants and e-mailed them back to officers in less than 15 minutes”).
While this is "good news", its nothing more than that: a news. No change at all will happen. Nothing! Your local sheriff is breaking the law. So what? Are you gonna call law enforcement to arrest him? Good luck!
Yes, eventually they may be punished by Congress taking away some of their founds. But I bet they will rather let go some officers, not maintain their cars and guns properly, than stop harassing your privacy. Who knows -- perhaps somewhere they will let a murder slip through cracks just to show how important that technology is to "keep you safe", just like government has been caught times and times again in false flags attacks.
Am I wrong?
This ruling absolutely will have an impact on the relatively widespread use of those little memory dumping devices that cops love to use in routine arrests and even traffic stops in some states.
Simple: The same way an agent can't open your car trunk even if it may contain one of 1. groceries or 2.war weapons.
Police can't search your cell phone without a warrant.
Police that arrest you can't search your cell phone without a warrant.
The question brought to the court was whether or not Aero has direct liability for copyright infringement. This direct liability is only found if Aero "volitionally" "performs" copyrighted material.
The opinion of the court uses a "looks-like-cable-TV" justification for its treatment of Aero, as Scalia (dissenting) notes:
>"The injury claimed is not violation of a law that says operations similar to cable TV are subject to copyright liability, but violation of §106(4) of the Copyright Act. And whatever soothing reasoning the Court uses to reach its result (“this looks like cable TV”), the consequence of its holding is that someone who implements this technology “perform[s]” under that provision. That greatly disrupts settled jurisprudence which, before today, applied the straightforward, bright-line test of volitional conduct directed at the copyrighted work."
Whether or not Aero has secondary liability does not matter; the Supreme Court's vague ruling destabilizes existing jurisprudence and eliminates a concrete test in favour of the immaterial "looks-like-cable-TV" criterion.
This case is of actual relevance to people who won't be dead in the next 30 years, and will remain relevant long after.
Anyone else concerned that the Chief Justice of the Supreme Court of the United States appears to believe that Mars is an inhabited planet?
There's plenty of things that bug me about John Roberts being CJ, but your complaint isn't one of them.