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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]

#111

Post by yew »

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?

Look at the footnote on page 18 of the opinion for a smidgen of context - it doesn't exactly explicitly mention wiretapping, but "the collection or inspection of aggregated digital information . . . under other circumstances" looks close enough.

Reproduced here:

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.

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

#112

Post by danesparza »

thucydides wrote: post #102
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?

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 li…

"if I were a lawyer for the NSA" ... well, I think you're mistaken already. I'm not sure the NSA operates the way you think it does (or the way many people hope it does). Considering that FISA courts (http://en.wikipedia.org/wiki/United_States_Foreign_Intellige...) seem to operate outside the jurisdiction of our normal legal system, and considering the NSA is considered part of the US military with no Congressional oversight allowed (http://en.wikipedia.org/wiki/Nsa#Legal_accountability) I'm not sure this ruling with have any bearing on the NSA.

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

#113

Post by Wistar »

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…

It was a matter of beauty and not utility.

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

#114

Post by joering2 »

uhm, so local sheriffs bought stingray equipment and spent tens of thousands of dollars on equipment they well know is illegal to use, and now with this decision they will just shut it down and stop using it? Okay...

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?

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

#115

Post by malandrew »

eugenez wrote: post #42
gr3yh47 wrote: post #3

The loss of Aereo sucks, but this is a much heavier positive ruling. I wonder if this extends to the NSA's warrantless collection and to what extent.

The ruling is not so much about whether they can search a phone without a warrant, but whether the resulting evidence is admissible in court for criminal cases. This will not impact NSA's collection since they have not been using it in court.

Unfortunately, we still need to address parallel construction which allows the fruits of NSA collection to make its way into domestic law enforcement activities and eventually court cases by indirect means. Parallel construction seems like it should be ruled unconstitutional since you have the right to confront your accuser in court (confrontation clause of the sixth amendment).

Out of curiosity, does anyone here know the current state of legal challenges that aim to stop the practice of parallel construction?

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

#116

Post by rayiner »

PaulAJ wrote: post #106
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…

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 voluntari…

You're right that the discussion on page 21 of the opinion suggests that the Court would find a privacy right in documents held in the cloud. Indeed, the government seemed to have conceded that point! "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." Slip. Op. at 21. Incidentally, I strongly suggest that anyone who says "the Court doesn't understand computers" read pages 19-21 of the opinion. It's a very cogent, if layman's description of the technical aspects of the case.

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.

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

#117

Post by anigbrowl »

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…

This raises the interesting question of whether you can have an app that detects (say by GPS) that you have been taken to a police station and auto-deletes the contents of your phone without breaking laws governing destruction of evidence.

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

#118

Post by thucydides »

danesparza wrote: post #112
thucydides wrote: post #102

Earlier quoted context omitted.

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 li…

"if I were a lawyer for the NSA" ... well, I think you're mistaken already. I'm not sure the NSA operates the way you think it does (or the way many people hope it does). Considering that FISA courts ( http://en.wikipedia.org/wiki/United_States_Foreign_Intellige... ) seem to operate outside the jurisdiction of our normal legal system, and considering the NSA is considered part of the US military with no Congressional…

No, the NSA can be challenged in court. Actually, both my post and the Wikipedia article you cite in your reply refer to federal suits against the NSA. In the recent past, courts would throw out NSA lawsuits because plaintiffs couldn't prove they had been personally surveilled, which left them without standing to sue. (Example: https://en.wikipedia.org/wiki/American_Civil_Liberties_Union...). Since Edward Snowden's revelations showed that some NSA programs target every American, that has changed.

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.

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

#119

Post by anigbrowl »

dragonwriter wrote: post #70
dan_bk wrote: post #66

Earlier quoted context omitted.

> But signals transmitted out into the world does not fit neatly into any of those four categories. 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.

> 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.

By some judges, not by others. If you adhere to a strict textualism of the sort favored by Justice Scalia, intent is a nice frame for the picture, but needs to be epressed operationally, eg Justice Scalia has little time for quotations from the Congressional record about what lawmakers aimed to achieve, and prefers to focus on the text of the law that was passed rather than the goal that was intended to be achieved. Likewise, justices have argued that the best cure for a bad law is zealous enforcement, which will (it is presumed) lead to its displacement by a better 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.

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

#120

Post by pc86 »

anigbrowl wrote: post #117
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…

This raises the interesting question of whether you can have an app that detects (say by GPS) that you have been taken to a police station and auto-deletes the contents of your phone without breaking laws governing destruction of evidence.

I'm not familiar with the intricacies of what constitutes destruction of evidence, but wouldn't that still qualify? I mean, is flushing cocaine down the toilet destruction of evidence because the cops are kicking down your door or because the act is inherently the destruction of evidence?

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.

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