How do we reconcile this "Officers may examine the phone’s physical aspects to ensure that it will not be used as a weap
on, but the data on the phone can endanger no one." along with the notion that encryption algorithms are considered munitions worthy of export restrictions?
Supreme court: Warrantless cell phone searches illegal [pdf]
51–60 of 161 posts
Re: Supreme court: Warrantless cell phone searches illegal [pdf]
#52Earlier quoted context omitted.
Why would the same not apply to the Internet cables the NSA directly taps all over the World?
Simple: the NSA isn't a law enforcement agency. It's not presenting evidence in court.
Hm... not so sure why this fact allows them to trample the Constitution or the Bill of Rights.
Re: Supreme court: Warrantless cell phone searches illegal [pdf]
#53How do we reconcile this "Officers may examine the phone’s physical aspects to ensure that it will not be used as a weap on, but the data on the phone can endanger no one." along with the notion that encryption algorithms are considered munitions worthy of export restrictions?
"physical aspects"
Re: Supreme court: Warrantless cell phone searches illegal [pdf]
#54Earlier quoted context omitted.
e.g. "a confidential source" that we saw on here yesterday. 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.
I believe this referring to a discussion on an article about the use of Stingray-type devices (If someone can provide the link that would be great), particularly how their use was concealed from courts when obtaining a search warrant. Instead of telling the court that the information was obtained by use of a Stingray, they told the court the information came from a "confidential source"
you're correct. I'll try to find the source later, but this was exactly the case. Police would install the tracker or whatever, then tell the judge it came from a confidential source (the legal definition of which is a person). Meaning that police were outright lying to judges.
edit: source -- https://news.ycombinator.com/item?id=7931548
Re: Supreme court: Warrantless cell phone searches illegal [pdf]
#55How do we reconcile this "Officers may examine the phone’s physical aspects to ensure that it will not be used as a weap on, but the data on the phone can endanger no one." along with the notion that encryption algorithms are considered munitions worthy of export restrictions?
Not an attorney, of course. Those two things don't tie together I think. Encryption can't make a phone explode, so it's not a munition.
Re: Supreme court: Warrantless cell phone searches illegal [pdf]
#56This passage is just beautiful: "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 t…
Why would the same not apply to the Internet cables the NSA directly taps all over the World?
It's generally not useful to quote flowery language like this, because it's not legally operative. It might justify a particular application of the law, but it isn't the law. It is what lawyers call "dicta."
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,[1] 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.
[1] 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.
Re: Supreme court: Warrantless cell phone searches illegal [pdf]
#57How do we reconcile this "Officers may examine the phone’s physical aspects to ensure that it will not be used as a weap on, but the data on the phone can endanger no one." along with the notion that encryption algorithms are considered munitions worthy of export restrictions?
With the recognition that the export restrictions are based on potential military application by a nation-state adversary which may require time and other hardware and software to realize and that the permission to search for weapons incident to arrest centers around immediate physical danger to the arresting officer and others from the item itself, so the two things are not concerned with even remotely the same considerations.
Re: Supreme court: Warrantless cell phone searches illegal [pdf]
#58How do we reconcile this "Officers may examine the phone’s physical aspects to ensure that it will not be used as a weap on, but the data on the phone can endanger no one." along with the notion that encryption algorithms are considered munitions worthy of export restrictions?
"physical aspects"
Yep. Also the "munitions" line became false something like 17 years ago when encryption export controls moved from State to Commerce.
Re: Supreme court: Warrantless cell phone searches illegal [pdf]
#59How do we reconcile this "Officers may examine the phone’s physical aspects to ensure that it will not be used as a weap on, but the data on the phone can endanger no one." along with the notion that encryption algorithms are considered munitions worthy of export restrictions?
> along with the notion that encryption algorithms are considered munitions worthy of export restrictions?
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.
Re: Supreme court: Warrantless cell phone searches illegal [pdf]
#60I haven't read the ruling yet, but it does include the fact that "collection" of the data without "search" is also illegal - right? Otherwise it doesn't change the mass surveillance situation much, and not that it's not illegal, because the Constitution does say "seizures", too, but I just want it to be clearly said by the Supreme Court so there's no doubt or room for "secret interpretations".
Different area of the law. Deals with search incident to arrest. Unrelated to NSA litigation or surveillance authority.