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Obama administration asks Supreme Court to allow warrantless cellphone searches

washingtonpost.com

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

#41

Post by GoodIntentions »

AlexandrB wrote: post #14
grandalf wrote: 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…

>>Hmm, sounds like they were promising more of the same.

>>If your suggestion is voting for an independent, is there a realistic scenario where an independent candidate could get elected in the United States?

Do you feel disenfranchised yet?

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

#42

Post by DannyBee »

GauntletWizard wrote: post #35

Your cellphones and personal computers shouldn't be protected by the Fourth ammendment; They should be protected by the Fifth. More and more, cellphones, PCs, and even other people's servers are becoming invaluable, impossible-to-live-without brain extensions. That they should be allowed to be used against you in court is insane. The communications that they send and receive should be subject to well-overseen surveil…

The fifth amendment was only ever intended to be dealing with testimony - you couldn't be called as a witness against yourself (the history of why it exists makes this clear). That is, you literally can not be asked to testify against yourself, in a custodial interrogation, court, or other setting where it could be used as evidence against you in a criminal trial.

It was never intended to prevent evidence you were stupid enough to write down from being used against you.

So basically, "insane or not", the fifth was clearly not intended for this purpose, despite your attempt to view this as "an extension of yourself".

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

#44

Post by snth »

AlexandrB wrote: post #36
danenania wrote: post #23

Earlier quoted context omitted.

"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,…

> 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. I think that's a bit idealistic. A lot of people voted Ralph Nader in 2000, and while it's up for debate wheth…

> One of the major parties would have to do some truly outrageous shit and alienate their base before this dynamic changes.

For me, recent events qualify.

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

#45

Post by ISL »

GauntletWizard wrote: post #35

Your cellphones and personal computers shouldn't be protected by the Fourth ammendment; They should be protected by the Fifth. More and more, cellphones, PCs, and even other people's servers are becoming invaluable, impossible-to-live-without brain extensions. That they should be allowed to be used against you in court is insane. The communications that they send and receive should be subject to well-overseen surveil…

I think many of the founders would have agreed with you.

That said, it's my understanding that personal diaries are admissible in court. Our electronics are similarly private, so the fourth amendment, protecting 'persons, houses, papers, and effects', applies.

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

#46

Post by brymaster »

This that same Obama that was on TV two weeks ago saying 'We don't have a domestic spying program' and that same Obama that a few days later was 'promising greater oversight and transparency and insisting he had no interest in snooping on ordinary citizens.' ?!

This feels like an Orwellian nightmare that I just woke up in.

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

#47

Post by cgshaw »

wavefunction wrote: post #37
cgshaw wrote: post #21

Earlier quoted context omitted.

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, whic…

You note that a "drug dealer" faces a warrantless search of his electronic devices to determine others involved in the "drug trade" but how is the determination that a suspect is a "drug dealer" made? Is this another discretionary power afforded to LEO?

Sort of, unfortunately.

Drugs laws, and the Court's interpretation of handling drug crimes gives officers a lot of latitude. I forget the name of the Court case that allows officers to intuit that ANY drug-related offender can be presumed to have a weapon, but the data was actually fairly compelling (without knowing how the data was derived, the outcome was pretty clear—statistical significance that people with drugs are likely to have weapons.

There's also a lot of law about "the person was a SUSPECTED drug offender" because they drove erratically, or were in the wrong neighborhood, or threw something out of the car..... basically anything, and those people can be treated much like folks found to have drugs on them in the first place.

But, if there is no reason to truly arrest someone, the search / seizure shouldn't take place. You usually don't get arrested for minor ordinances... (tickets, lane violations, etc.)

My example was more or less just a common example.

To my mind, if someone was arrested for selling pirated software on jump-drives, the officer would likely be able to check out the call log to look for other conspirators.

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

#48

Post by prawn »

There was a story on Reddit recently of a policeman accessing a woman's phone during a traffic stop (I think), finding raunchy photos of her on there and forwarding them to himself. Anyone remember it?

Removing barriers to access seems unfairly risky to me.

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

#49

Post by cgshaw »

DannyBee wrote: post #42
GauntletWizard wrote: post #35

Your cellphones and personal computers shouldn't be protected by the Fourth ammendment; They should be protected by the Fifth. More and more, cellphones, PCs, and even other people's servers are becoming invaluable, impossible-to-live-without brain extensions. That they should be allowed to be used against you in court is insane. The communications that they send and receive should be subject to well-overseen surveil…

The fifth amendment was only ever intended to be dealing with testimony - you couldn't be called as a witness against yourself (the history of why it exists makes this clear). That is, you literally can not be asked to testify against yourself, in a custodial interrogation, court, or other setting where it could be used as evidence against you in a criminal trial. It was never intended to prevent evidence you were st…

Attorney here.

DannyBee is absolutely correct. To my knowledge, data on a computer would be handled like an offender's diary, and that is certainly admissible in court, assuming authentication that the diary was actually written by the offender.

Data is interesting because authentication can arguable be harder to prove. (handwriting is pretty easy to attribute)

The truth is, the founding fathers likely could not have imagined in their wildest dreams that we could have all of human history on a flash drive with us at all times. Trying to apply "how they would have thought" or "WWFFD" to every new technology is kind of insane.

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

#50

Post by DannyBee »

ISL wrote: post #45
GauntletWizard wrote: post #35

Your cellphones and personal computers shouldn't be protected by the Fourth ammendment; They should be protected by the Fifth. More and more, cellphones, PCs, and even other people's servers are becoming invaluable, impossible-to-live-without brain extensions. That they should be allowed to be used against you in court is insane. The communications that they send and receive should be subject to well-overseen surveil…

I think many of the founders would have agreed with you. That said, it's my understanding that personal diaries are admissible in court. Our electronics are similarly private, so the fourth amendment, protecting 'persons, houses, papers, and effects', applies.

"I think many of the founders would have agreed with you."

Based on what?

The fifth amendment exists mainly to prevent torturing people for extracting information, a practice that was not uncommon in parts of the 16th and 17th centuries.

Extending this to "personal assistants" doesn't seem like anything the founders would have supported, so i'd love to see evidence.

Again, the fourth amendment, i agree, but the fifth? I don't see it.

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