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I wonder what the definition is of something being "on" my phone. Suppose that in the course of searching my phone, a cop runs the Facebook app. He sees one of

I wonder what the definition is of something being "on" my phone. Suppose that in the course of searching my phone, a cop runs the Facebook app. He sees one of my friends make (purely as a joke, as someone who knows him would understand) some asinine, but apparently threatening comment. That comment wasn't there when I last looked, indeed, it's not "there" at all, but on Facebook's server. Could I be considered to be complicit in my friend's (joking) plot? Now change the circumstance slightly, so instead of FB, it's a SMS text message. Again, it just arrived, so I don't even know it's there. My friend is jokingly asking if I've completed some illegal activity. Can this be used as evidence against me? The purpose of these 4th Amendment protections isn't just protection of privacy. It's also because in many cases, the evidence implies incorrect conclusions when you assume that the suspect knowingly and intentionally possessed something (of which he was really unaware). For me, this idea was really driven home by the movie "The Star Chamber"[1]. On the surface it's just a crime thriller, but the idea it posits is really worth thinking about. [1] http://www.imdb.com/title/tt0086356/ http://www.imdb.com/title/tt0086356/

Tyrannosaurs 15y ago
The examples you give aren't great. I don't think there's anything you can be found guilty of for reading someone else's threatening comment on Facebook or elsewhere. With the SMS the critical thing is the implication that you're guilty of something - whether you'd read it or not doesn't matter. To look at the idea further though, these things are best thought of as fishing trips. It's very unlikely anything on your phone is going to directly incriminate you, it's more likely that it's going to point to involvement in a crime and provide the police either with further lines of enquiry (investigating the person who sent the message) or a reason to carry out a more thorough investigation of you (and potentially grounds for a warrant). On it's own it would it seem that anything of this sort would be, at best, circumstantial evidence. (All of this assumes that it wouldn't be struck down as unconstitutional - state laws obviously not being able to overturn the constitution).
- tptacek 15y ago
  You should be careful when you talk about "circumstantial evidence". There's a very pervasive meme that circumstantial evidence is somehow invalid, but that has never, ever been the case.
  - Tyrannosaurs 15y ago
    It depends where in the world you are. In the US it's very much second class evidence (though not invalid) but in, say, Italy, it's far more common to build a successful case based largely on circumstantial evidence.

Tyrannosaurs 15y ago

The examples you give aren't great. I don't think there's anything you can be found guilty of for reading someone else's threatening comment on Facebook or elsewhere. With the SMS the critical thing is the implication that you're guilty of something - whether you'd read it or not doesn't matter. To look at the idea further though, these things are best thought of as fishing trips. It's very unlikely anything on your phone is going to directly incriminate you, it's more likely that it's going to point to involvement in a crime and provide the police either with further lines of enquiry (investigating the person who sent the message) or a reason to carry out a more thorough investigation of you (and potentially grounds for a warrant). On it's own it would it seem that anything of this sort would be, at best, circumstantial evidence. (All of this assumes that it wouldn't be struck down as unconstitutional - state laws obviously not being able to overturn the constitution).

tptacek 15y ago
You should be careful when you talk about "circumstantial evidence". There's a very pervasive meme that circumstantial evidence is somehow invalid, but that has never, ever been the case.
- Tyrannosaurs 15y ago
  It depends where in the world you are. In the US it's very much second class evidence (though not invalid) but in, say, Italy, it's far more common to build a successful case based largely on circumstantial evidence.