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Supreme court: Warrantless cell phone searches illegal [pdf]

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Re: Supreme court: Warrantless cell phone searches illegal [pdf]

#101

Post by TheCoelacanth »

rdrdss23 wrote: post #99
acangiano wrote: post #6

This 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…

"protection for which the Founders fought" 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…

This case has more to do with the 4th amendment which is part of the Bill of Rights.

Re: Supreme court: Warrantless cell phone searches illegal [pdf]

#102

Post by thucydides »

dan_bk wrote: post #37
acangiano wrote: post #6

This 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?

I practice law elsewhere, but if I were a lawyer for the NSA, I would be scared after reading this opinion. Some of its reasoning about cell phones is directly applicable to the NSA's reported invasions of Americans' cell phones, indefinite collection of all Americans' call logs, and other matters. Admittedly, the Court tends to defer more to the executive branch in national security contexts than in criminal ones like this, but this opinion is ominous for some of the NSA's surveillance programs. In some places, the opinion's discussion of the inherent intrusiveness of cell phone searches reads very much like Judge Leon's rejection of the NSA's phone metadata collection program from December 2013 (http://online.wsj.com/public/resources/documents/JudgeLeonNS...).

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."

Re: Supreme court: Warrantless cell phone searches illegal [pdf]

#103

Post by ChrisBland »

IgorPartola wrote: post #86
rayiner wrote: post #56

Earlier quoted context omitted.

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) T…

I guess I don't get the distinction in the comparison. Let me lay out a simple example: 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 w…

I think one of the main distinctions that people fail to make in this discussion is that in these cases, the evidence of the warrantless search was entered against them in a court of law. They needed a warrant to view the phone data and then to use that as evidence against you, in this case they said the search was illegal so all fruit of the poisonous tree could not be introduced at trial. While I disagree with what the nsa is doing, they are not using the evidence obtained illegally against you, granted you do have the right to be free of unreasonable searches and seizures, which was one of the main complaints back in colonial days wrt general writs, which is why that language is there. They are two different things, one is the right be to free of unreasonable searches (nsa), and another related to the use of evidence you had on you at time of arrest being searched as part of you being taken in to custody.

Re: Supreme court: Warrantless cell phone searches illegal [pdf]

#104

Post by rdrdss23 »

TheCoelacanth wrote: post #101
rdrdss23 wrote: post #99

Earlier quoted context omitted.

"protection for which the Founders fought" 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…

This case has more to do with the 4th amendment which is part of the Bill of Rights.

sure, but the issue is that it's conflating things and making an appeal to authority

Re: Supreme court: Warrantless cell phone searches illegal [pdf]

#106

Post by PaulAJ »

rayiner wrote: post #56
dan_bk wrote: post #37

Earlier quoted context omitted.

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) T…

What you say is true, but the Court's language in this case strongly suggests that it would find a similar privacy right in documents held in the cloud independently of cellphones. This is contrary to Smith vs Maryland, which the government uses as justification for gathering metadata, in which it was held that a single phone number could be passed to the police without a warrant because it had already been voluntarily shared with the phone company. Hence when the NSA "grab everything" policy eventually winds up in the Supreme Court it is likely to be judged contrary to the fourth amendment.

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.

Re: Supreme court: Warrantless cell phone searches illegal [pdf]

#107

Post by malandrew »

jonstewart wrote: post #47
dan_bk wrote: post #37

Earlier 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.

A bit off topic, but your comment did lead me to think that there may be a alternative way to curb NSA civil liberties abuses: treat it like an island.

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.

Re: Supreme court: Warrantless cell phone searches illegal [pdf]

#108

Post by schrodinger »

declan wrote: post #63
belovedeagle wrote: post #35

Earlier quoted context omitted.

I only read the opinion summary and the concurrence, but from the summary: > 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/…

Also the officers can presumably stick it in a $19 RF-shielded pouch to avoid a remote wipe by a confederate of the arrestee.

Maybe we need a dead man's switch on our phones? If you haven't entered your passcode in the past x hours, it self-wipes?

Re: Supreme court: Warrantless cell phone searches illegal [pdf]

#109

Post by baddox »

dan_bk wrote: post #37
acangiano wrote: post #6

This 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?

Those are illegal as well.

Re: Supreme court: Warrantless cell phone searches illegal [pdf]

#110

Post by malandrew »

nathanstitt wrote: post #27
SoftwareMaven wrote: post #9

A great decision, IMO, and the only sane decision for e.g. traffic stops (a place where cell phone searches should never have been considered legal). It probably won't alter things appreciably for somebody who is being arrested, though. I can't imagine that warrant will be hard to get if the police have enough on you to put you in cuffs.

A warrant's has to also have legal justification, i.e. "reasonable suspicion". If it does not, that's one more thing that can be argued at trial, with the possibility that the search can be thrown out. 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 progre…

As we start having more and more officers being recorded as they interact with the public, it would be interesting to have a policy of "thinking out loud", where the cops actively are dictating what they are thinking during an encounter so that it is harder to "rewrite history" by presenting an alternative false viewpoint in order to be congruous with the decision to search.

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.

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