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Obama administration asks Supreme Court to allow warrantless cellphone searches

washingtonpost.com

21–30 of 113 posts

Re: Obama administration asks Supreme Court to allow warrantless cellphone searches

#21
post #9

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…

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.

Re: Obama administration asks Supreme Court to allow warrantless cellphone searches

#22
post #12
post #4

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?

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.

I was about to write a response about how my cell phone isn't a bag. But, then I realized I feel almost as dirty knowing they could go through the bag as I do thinking they might be able to go through my phone.

If I've already been arrested for something, why do they need to be in my bag? Clearly they already had what they needed to arrest me in the first place, why poke around for more?

(sometimes your posts make me paranoid)

*edit: I understand officer safety, but thinking of already being arrested I assume I'm in custody, and effectively neutralized. And, if I never made any motion or gesture towards my bag it seems safe to assume I am not armed or if I am it's not to hurt the police. Maybe I just am not thinking criminal enough ;)

Re: Obama administration asks Supreme Court to allow warrantless cellphone searches

#23
post #3

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

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 sugge…

"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.

Re: Obama administration asks Supreme Court to allow warrantless cellphone searches

#24

Earlier quoted context omitted.

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 sugge…

>is there a realistic scenario where an independent candidate could get elected in the United States? Do you know about the 5% funding rule in the US? Why not vote for a third party?

>>Why not vote for a third party?

Because it does nothing.

Re: Obama administration asks Supreme Court to allow warrantless cellphone searches

#25
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...

> [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.

Re: Obama administration asks Supreme Court to allow warrantless cellphone searches

#26
post #20
post #12

Earlier quoted context omitted.

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.

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…

[deleted]

Re: Obama administration asks Supreme Court to allow warrantless cellphone searches

#27
post #3

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

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 sugge…

Seems pretty clear that it's time for the next generation (cyber-citizen party?) to start running for office.

/me writes in tptacek / cperciva

Re: Obama administration asks Supreme Court to allow warrantless cellphone searches

#28

Earlier quoted context omitted.

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 sugge…

>is there a realistic scenario where an independent candidate could get elected in the United States? Do you know about the 5% funding rule in the US? Why not vote for a third party?

I did not know about this! I assume you mean this: http://www.fec.gov/pages/brochures/pubfund.shtml

Interesting, but it comes with a bunch of conditions (these are for 2008):

- General election spending limited to $84.1 million

- Primary spending limited to $42.05 million

Quick google search revealed that in 2008, the dem/con candidate spent almost $1B each: http://www.bloomberg.com/apps/news?pid=newsarchive&sid=aerix...

I'm not sure the public funding will help! Certainly it might get your foot in the door for one election cycle, but it won't win an election without a lot of grassroots support.

Re: Obama administration asks Supreme Court to allow warrantless cellphone searches

#29
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.

Re: Obama administration asks Supreme Court to allow warrantless cellphone searches

#30

> 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.

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