6 ms·

Just turning your phone on qualifies as searching it, court rules

44 points by close04 6y ago

billme 6y ago
Related legal basis for ruling: (Plain View Doctrine) https://en.wikipedia.org/wiki/Plain_view_doctrine https://en.wikipedia.org/wiki/Plain_view_doctrine (Fruit of the Poisonous Tree) https://en.wikipedia.org/wiki/Fruit_of_the_poisonous_tree https://en.wikipedia.org/wiki/Fruit_of_the_poisonous_tree
t-writescode 6y ago
How can this country, with one side of its mouth, say that location data on a phone requires a warrant, but then say that browsing history doesn't. I don't understand.
- spacemanmatt 6y ago
  This country speaks out both sides of its mouth all day every day. My estimate is the FBI will appeal, likely end up with a Trump-appointee presiding over the appellate court.
  - colejohnson66 6y ago
    (I’m not gonna argue whether this is good or bad; I’m just stating facts) While it is true that Trump has appointed a record number of judges during his term, it’s still only about 1 in 4[0]. As for the Courts of Appeals specifically, it’s about the same. Wikipedia says (as of May 21), he’s appointed 51[1], of which there’s a total of 179[2]. [0]: https://www.washingtonpost.com/politics/one-in-every-four-circuit-court-judges-is-now-a-trump-appointee/2019/12/21/d6fa1e98-2336-11ea-bed5-880264cc91a9_story.html https://www.washingtonpost.com/politics/one-in-every-four-ci... (“Trump nominees make up 1 in 4 U.S. circuit court judges.”) [1]: https://en.wikipedia.org/wiki/List_of_federal_judges_appointed_by_Donald_Trump https://en.wikipedia.org/wiki/List_of_federal_judges_appoint... (“As of May 21, 2020, the United States Senate has confirmed 196 Article III judges nominated by President Trump, including ... 51 judges for the United States Courts of Appeals, ...”; “There is currently 1 vacancy on the U.S. Courts of Appeals, ...”) [2]: https://en.wikipedia.org/wiki/United_States_courts_of_appeals https://en.wikipedia.org/wiki/United_States_courts_of_appeal... (“There are currently 179 judgeships on the U.S. courts of appeals authorized by Congress in 28 U.S.C. § 43 pursuant to Article III of the U.S. Constitution.”)
- pjc50 6y ago
  The US has no general, coherent, constitutional legal theory of privacy per se. Just the 4th amendment rule against unreasonable seaches. As distinct from ECHR general right to private life. This leads to all sorts of "I'm not touching you" shenanigans where getting your data from somewhere else is perfectly fine, so long as they're not performing something that could be called a search on you specifically.
  - mhh__ 6y ago
    Then there's also the whole can of worms that (I'm not a lawyer but if I understand it correctly) the NSA can collect as much data about you as they like but it is not considered to have been collected until someone actually requests it
    - mindslight 6y ago
      Don't listen to any of NSA's, or really the entire executive branch's, narratives about the legality of anything. It's possible to twist logic to justify anything when you've set out to do so - the legal equivalent of "I'm not hitting my brother, I'm just flailing my arms and walking forward". The only effective answer about legality is when these things actually end up in a real court, apart from the secret kangaroo "courts" they've invented. And as we've seen, these treacherous agencies will do everything they can to keep their activities out of open court.
      - mhh__ 6y ago
        "We are overseen by the FISA courts!" - NSA "We don't have enough money to oversee the NSA" - FISA courts Repeat ad infinitum
- yakz 6y ago
  Not really the same, you willingly give your browsing history away by browsing, and your ISP is a private company. Maybe if the ISP were more like a government-run library, which are famous for not being able to give away your book browsing history, it would be different.
- billme 6y ago
  In the US, as long as data is gained from third-parties, your “browsing history” falls under the “third-party doctrine”: https://en.m.wikipedia.org/wiki/Third-party_doctrine https://en.m.wikipedia.org/wiki/Third-party_doctrine
- colejohnson66 6y ago
  Because of separation of powers, the judicial branch isn’t run by the executive or legislative branches. Also, the fact that the government isn’t a singular entity; it’s three distinct entities (each with their own sub entities) that are ultimately run by millions of separate humans, each with their own belief system.
- _bender_ 6y ago
  Many scholars are arguing that browsing history will require a warrant after Carpenter. For example, see Paul Ohm's article: https://jolt.law.harvard.edu/assets/articlePDFs/v32/32HarvJLTech357.pdf https://jolt.law.harvard.edu/assets/articlePDFs/v32/32HarvJL... The recent act by Congress does not mean it is actually legal to access browsing history without a warrant. It will be interesting to follow the development of this issue through the courts.
Ciantic 6y ago
I've heard from people that they use burner phone when they enter US, because at the border things get problematic. Does this mean that it's now sufficient to turn off your phone in the border, and they can't demand to see it?
- evgen 6y ago
  The government (via their customs agents) can search anything they want at the border and need neither probable cause or a warrant. Not going to work.
  - lotsofpulp 6y ago
    Which is defined as 100 miles from any border: https://www.aclu.org/other/constitution-100-mile-border-zone https://www.aclu.org/other/constitution-100-mile-border-zone
  - yardie 6y ago
    They definitely need a warrant and definitely need probably cause. And it definitely has to be within the jurisdiction of CBP, ie. they can't pull you over for running a light. What you do have is a lot of Americans will defer to LEOs without a second thought.
    - evgen 6y ago
      No, they really don't need a warrant and they really don't need probable cause. I could pull out USC refs but just read https://en.wikipedia.org/wiki/Border_search_exception https://en.wikipedia.org/wiki/Border_search_exception
      - yardie 6y ago
        My mistake, I was actually replying to lotsofpulp on the 100 mile border zone. Once you've cleared the border it's not a free for all. All rights, except those related to the border crossing, are restored.
      - 6y ago

44 points by close04 6y ago

Related legal basis for ruling: (Plain View Doctrine) https://en.wikipedia.org/wiki/Plain_view_doctrine https://en.wikipedia.org/wiki/Plain_view_doctrine (Fruit of the Poisonous Tree) https://en.wikipedia.org/wiki/Fruit_of_the_poisonous_tree https://en.wikipedia.org/wiki/Fruit_of_the_poisonous_tree

t-writescode 6y ago

How can this country, with one side of its mouth, say that location data on a phone requires a warrant, but then say that browsing history doesn't. I don't understand.

spacemanmatt 6y ago
This country speaks out both sides of its mouth all day every day. My estimate is the FBI will appeal, likely end up with a Trump-appointee presiding over the appellate court.
- colejohnson66 6y ago
  (I’m not gonna argue whether this is good or bad; I’m just stating facts) While it is true that Trump has appointed a record number of judges during his term, it’s still only about 1 in 4[0]. As for the Courts of Appeals specifically, it’s about the same. Wikipedia says (as of May 21), he’s appointed 51[1], of which there’s a total of 179[2]. [0]: https://www.washingtonpost.com/politics/one-in-every-four-circuit-court-judges-is-now-a-trump-appointee/2019/12/21/d6fa1e98-2336-11ea-bed5-880264cc91a9_story.html https://www.washingtonpost.com/politics/one-in-every-four-ci... (“Trump nominees make up 1 in 4 U.S. circuit court judges.”) [1]: https://en.wikipedia.org/wiki/List_of_federal_judges_appointed_by_Donald_Trump https://en.wikipedia.org/wiki/List_of_federal_judges_appoint... (“As of May 21, 2020, the United States Senate has confirmed 196 Article III judges nominated by President Trump, including ... 51 judges for the United States Courts of Appeals, ...”; “There is currently 1 vacancy on the U.S. Courts of Appeals, ...”) [2]: https://en.wikipedia.org/wiki/United_States_courts_of_appeals https://en.wikipedia.org/wiki/United_States_courts_of_appeal... (“There are currently 179 judgeships on the U.S. courts of appeals authorized by Congress in 28 U.S.C. § 43 pursuant to Article III of the U.S. Constitution.”)
pjc50 6y ago
The US has no general, coherent, constitutional legal theory of privacy per se. Just the 4th amendment rule against unreasonable seaches. As distinct from ECHR general right to private life. This leads to all sorts of "I'm not touching you" shenanigans where getting your data from somewhere else is perfectly fine, so long as they're not performing something that could be called a search on you specifically.
- mhh__ 6y ago
  Then there's also the whole can of worms that (I'm not a lawyer but if I understand it correctly) the NSA can collect as much data about you as they like but it is not considered to have been collected until someone actually requests it
  - mindslight 6y ago
    Don't listen to any of NSA's, or really the entire executive branch's, narratives about the legality of anything. It's possible to twist logic to justify anything when you've set out to do so - the legal equivalent of "I'm not hitting my brother, I'm just flailing my arms and walking forward". The only effective answer about legality is when these things actually end up in a real court, apart from the secret kangaroo "courts" they've invented. And as we've seen, these treacherous agencies will do everything they can to keep their activities out of open court.
    - mhh__ 6y ago
      "We are overseen by the FISA courts!" - NSA "We don't have enough money to oversee the NSA" - FISA courts Repeat ad infinitum
yakz 6y ago
Not really the same, you willingly give your browsing history away by browsing, and your ISP is a private company. Maybe if the ISP were more like a government-run library, which are famous for not being able to give away your book browsing history, it would be different.
billme 6y ago
In the US, as long as data is gained from third-parties, your “browsing history” falls under the “third-party doctrine”: https://en.m.wikipedia.org/wiki/Third-party_doctrine https://en.m.wikipedia.org/wiki/Third-party_doctrine
colejohnson66 6y ago
Because of separation of powers, the judicial branch isn’t run by the executive or legislative branches. Also, the fact that the government isn’t a singular entity; it’s three distinct entities (each with their own sub entities) that are ultimately run by millions of separate humans, each with their own belief system.
_bender_ 6y ago
Many scholars are arguing that browsing history will require a warrant after Carpenter. For example, see Paul Ohm's article: https://jolt.law.harvard.edu/assets/articlePDFs/v32/32HarvJLTech357.pdf https://jolt.law.harvard.edu/assets/articlePDFs/v32/32HarvJL... The recent act by Congress does not mean it is actually legal to access browsing history without a warrant. It will be interesting to follow the development of this issue through the courts.

Ciantic 6y ago

I've heard from people that they use burner phone when they enter US, because at the border things get problematic. Does this mean that it's now sufficient to turn off your phone in the border, and they can't demand to see it?

evgen 6y ago
The government (via their customs agents) can search anything they want at the border and need neither probable cause or a warrant. Not going to work.
- lotsofpulp 6y ago
  Which is defined as 100 miles from any border: https://www.aclu.org/other/constitution-100-mile-border-zone https://www.aclu.org/other/constitution-100-mile-border-zone
- yardie 6y ago
  They definitely need a warrant and definitely need probably cause. And it definitely has to be within the jurisdiction of CBP, ie. they can't pull you over for running a light. What you do have is a lot of Americans will defer to LEOs without a second thought.
  - evgen 6y ago
    No, they really don't need a warrant and they really don't need probable cause. I could pull out USC refs but just read https://en.wikipedia.org/wiki/Border_search_exception https://en.wikipedia.org/wiki/Border_search_exception
    - yardie 6y ago
      My mistake, I was actually replying to lotsofpulp on the 100 mile border zone. Once you've cleared the border it's not a free for all. All rights, except those related to the border crossing, are restored.
    - 6y ago