7 ms·

Obama administration asks Supreme Court to allow warrantless cellphone searches

280 points by eplanit 13y ago

BrianPetro 13y ago
To make sure you aren't carrying any top-secret files to the airport of course, I mean terrorism...
grandalf 13y ago
Let's all remember this kind of thing the next time we are inspired by a candidate's promises or rhetoric.
- fixxer 13y ago
  If we all stop having children, then there will be less inspired youth willing to buy any candidate's pack of lies. And the world will be full of crotchety old bastards like myself. Yay!
- AlexandrB 13y ago
  Okay. Who should Americans vote for then? Here's what the Conservative party had to say during the 2008 election cycle: "Although our country has thwarted new terrorist attacks since 2001, those threats do persist. That is why our reform of the Foreign Intelligence Surveillance Act was so vital, and why the Democrats' opposition to it was so wrong." Hmm, sounds like they were promising more of the same. If your suggestion is voting for an independent, is there a realistic scenario where an independent candidate could get elected in the United States?
  - unknownian 13y ago
    >is there a realistic scenario where an independent candidate could get elected in the United States? Do you know about the 5% funding rule in the US? Why not vote for a third party?
    - enraged_camel 13y ago
      >>Why not vote for a third party? Because it does nothing.
      - jlgreco 13y ago
        Neither it seems, does voting for one of the two main parties.
        enraged_camel 13y ago
        You have a fourth option.
        jlgreco 13y ago
        There are several other options, some more practical than others. If only we required a hard majority of Americans to vote for somebody for them to win, then abstaining from voting could become an option with teeth. Then candidates would have to convince the public that they should vote for them, rather than just convincing the public not to vote for the other guy. Abstaining is, in my opinion, a respectable choice. Any vote is a vote of confidence in the system; if everybody who didn't like any of the candidates just stayed home instead of "voting for the lesser evil", then the farce that is our democracy would be made plain. Abstaining isn't the only interesting option though. Another option is enfranchisement where instead of voting on the behalf of yourself you instead vote on the behalf of one of the billions of disenfranchised. National elections in developed countries don't just affect the nation in question but rather the world. The lives of many in other countries literally hangs in the balance during American elections but they are not permitted to participate. Perhaps worse, many Americans are not permitted to vote just because they are not recognized as 'citizens'. Next election, perhaps instead of abstaining, vote on the behalf of somebody who is not represented. An individual doing this is not going to change anything but a national enfranchisement campaign has the potential to be subversive. We need a discussion on what being a democracy actually means.
        13y ago
  - danenania 13y ago
    "If your suggestion is voting for an independent, is there a realistic scenario where an independent candidate could get elected in the United States?" How about a scenario in which all the people who claim to be voting for the lesser of two evils reevaluate their own defeatist attitude? If the only thing stopping a significant enough percentage of people from voting for a 3rd party is the perceived inability to win, then it's just a coordination problem. It would be interesting to see a poll asking "If you knew the candidate you voted for could win, who would you vote for?" Another argument for voting according to your principles is that based on the electoral college system, only people living in a few states actually contribute to the outcome of the election with their votes, so if you don't live in one of those states, you might as well show your support for someone you don't consider to be evil.
    - AlexandrB 13y ago
      > How about a scenario in which all the people who claim to be voting for the lesser of two evils reevaluate their own defeatist attitude? If the only thing stopping a significant enough percentage of people from voting for a 3rd party is the perceived inability to win, then it's just a coordination problem. I think that's a bit idealistic. A lot of people voted Ralph Nader in 2000, and while it's up for debate whether this cost Gore the election, I think many voters are now turned off the idea. In a close con/dem race, I think many would rather have some of their positions represented by the resulting POTUS than shoot for the moon and risk "splitting the vote". One of the major parties would have to do some truly outrageous shit and alienate their base before this dynamic changes.
      - snth 13y ago
        > One of the major parties would have to do some truly outrageous shit and alienate their base before this dynamic changes. For me, recent events qualify.
      - cgranade 13y ago
        I agree with you, but I'd have hoped the outrageous shit happening now would be enough to break the two-party dynamic, but I'm rather doubting it, having seen that the reactions are defined by the media in an entirely two-party manner. I think if anything from the NSA leaks changes this dynamic, it will be the exodus of technology dollars from the US.
  - pedro84 13y ago
    Seems pretty clear that it's time for the next generation (cyber-citizen party?) to start running for office. /me writes in tptacek / cperciva
  - GoodIntentions 13y ago
    >>Hmm, sounds like they were promising more of the same. >>If your suggestion is voting for an independent, is there a realistic scenario where an independent candidate could get elected in the United States? Do you feel disenfranchised yet?
  - einhverfr 13y ago
    Voting should be a minor part of political advocacy. Make noise. Vote for the parties that will listen to you and try to make policy in favor of what you demand. If they disappoint, kick them out of office by voting for the other guys or at least issuing a protest vote. What voting does is it gives bite to all the rest of the political action one does during a term of elected office. It is what makes political speech effective. It does not replace it.
  - Zoomla 13y ago
    vote for nobody... if there is a very small percentage of the population that votes, can they really say that this is a democracy?
  - pvdm 13y ago
    Vote Green. http://stallman.org/ http://stallman.org/
- acheron 13y ago
  Anyone who gets "inspired" by politicians is dangerous. A politician should cause mild disgust, at best.
  - deleted 13y ago
    [deleted]
    - fetbaffe 13y ago
      The difference would have been that then everyone had rallied against the evil Republican. Now instead you are called a racist for even implying that Obama is an authoritarian statist. Look what happened to the rodeo clown.
fixxer 13y ago
I get the argument that data I store on the Cloud is open to interpretation given the 3rd party (if I give Google the right to look at my data, then it is unreasonable for me to expect privacy on par with a physical drive in my possession), but data stored on my cell (a physical piece of equipment in my possession)? WTF?
- tptacek 13y ago
  I carry around a Tom Bihn bag. I do not generally let people look inside of it. When stores ask, I leave. However, if I'm arrested, the police will be allowed to search that bag, despite it being a physical pice of equipment in my possession. That's because the police do get to search you, rather thoroughly, if you're arrested.
  - fixxer 13y ago
    But you still have some expectation of privacy. Search is supposed to be limited to the area within their immediate control for purpose of seizing any weapons or "obvious evidence related to or separate from the crime incident to the arrest". I guess it comes down to how we define obvious. Is the file system on my phone obvious? EDIT: Tom Bihn? You need to get a CountyComm EOD Utility Bag. Nothing says "hello" to TSA like a bag with pockets designed for M4 clips.
    - deleted 13y ago
      [deleted]
  - libraryatnight 13y ago
    I was about to write a response about how my cell phone isn't a bag. But, then I realized I feel almost as dirty knowing they could go through the bag as I do thinking they might be able to go through my phone. If I've already been arrested for something, why do they need to be in my bag? Clearly they already had what they needed to arrest me in the first place, why poke around for more? (sometimes your posts make me paranoid) *edit: I understand officer safety, but thinking of already being arrested I assume I'm in custody, and effectively neutralized. And, if I never made any motion or gesture towards my bag it seems safe to assume I am not armed or if I am it's not to hurt the police. Maybe I just am not thinking criminal enough ;)
jobu 13y ago
Yeah, that'll never be abused...
codeka 13y ago
It's an interesting question. I think the specific circumstances described in the article, where the police looked in the suspect's phone to find his home address is arguably not a bad search. But as they point out in the article, how far can you take it? Can you look up a person's recent contacts? His browser history? His "downloads" folder? His emails? It seems like a very small step from looking up the last few people he called to going through all his emails...
- tptacek 13y ago
  It is interesting! If you get arrested driving your car, the police can't then go to your house and copy all your private papers; they need to get a warrant to do that. But in 2013, you're as likely to be carrying around all your private papers as you are to keep them in your house. So it can't reasonably be the case that an arrest gives the police access to your accounts online!
gms 13y ago
It is interesting to consider what the implications of this would be. Does this mean the police would be able to open the Facebook app on my iPhone, and browse my profile as well as all my friends'? Including all wall posts, messages, photos, etc? Technically, none of this is stored on the phone itself.
- tptacek 13y ago
  Maybe that's like the car/house analogy: the stuff on your actual phone is like what's in plain view in the passenger compartment of your car, but the stuff in your Facebook account is like what's back at your house. But then, that only buys us a couple more years of reasonable delineation; eventually technology will get us to a place where all the data we want to protect is always resident with us.
tptacek 13y ago
Careful about the "warrantless" here. It's true, it's a warrantless search, and don't think I'm saying that's an illegitimate concern. However: The police already have broad authority to search you and your immediate person incident to an arrest. If this is news to you, you really want to read up on it. This is one of the big things that makes a formal arrest different from mere detention, and one of the reasons the ACLU guides and things like that instruct you to clearly ask if you're "under arrest". All the DoJ is saying here is that a cellphone is, like your pockets and your bags, a legitimate target of a search incident to arrest. There's apparently a circuit split on the issue. There are other things that aren't legit incident to arrest; for instance, certain kinds of car searches aren't lawful solely because of arrest (trunks can be searched if cars are impounded, but only for "inventory", and can't be searched IIRC if the car isn't impounded; similarly, being arrested outside won't give the police the automatic authority to search your house).
- cgshaw 13y ago
  Attorney here. The search incident to lawful arrest doctrine is rooted in officer safety. Specifically, the Court says officers should have the ability to look for guns and contraband when someone is pulled over and it's likely they are armed or their immediate person or vicinity poses a threat and/or has evidence of a crime. The courts have decided that any drug suspicion means they are likely to have a weapon, which is unfortunate, but at least based in some reality. To my knowledge, the only court (and courts are split) that has allowed electronics to be searched is when a drug dealer was pulled over in California and incident to lawful arrest, the officer downloaded the call history to help them find others involved in the drug trade. There is NO COURT to my knowledge that would authorize warrantless search or confiscation of someone's cell data, computer data, jump drives, etc. without an arrest taking place. That is a fishing expedition and it's exactly what the Court has ruled unconstitutional under the 4th amendment. This is where I get very frustrated with the NSAs ability to collect the call information in the first place. The only reason to collect it is to fish later—that's not how the law is supposed to work. These are complex problems that very few judges or lawmakers have enough understanding of technologically to make informed judgement, IMHO, however. EDIT - My best guess is that the Court will allow basic access to a cell phone taken in a lawful arrest. I.E., like the article linked above, an officer would be able to look at the call history, but not necessarily download the content of the phone. I think the offender's brief will likely ARGUE that the phone not be accessed at all, with the true hope being the Court merely limits what officers can do. I have a hard time believing they won't let officers look at any of the electronics with them. I also hope they don't just let officers download everything carte blanche.
wtvanhest 13y ago
I prefer that police have less power than more power. That being said, this is how a system of checks and balances should work. I'm hoping the supreme court says no but if they say yes, I am at least happy that the correct process was used rather than police continue to search phones while waiting for a supreme court decision.
jcampbell1 13y ago
> In 2007, the police arrested a Massachusetts man who appeared to be selling vodka from his car. The cops seized his cellphone and noticed that it was receiving calls from “My House.” They opened the phone to determine the number for “My House.” That led them to the man’s home, where the police found vodka, cash and guns. 50 years from now, this article is going to seem like a bad joke.
- anfedorov 13y ago
  The article currently says "drugs, cash, and guns". Was that changed, or are you making a joke?
  - dwaltrip 13y ago
    He is implying the drug war will have ended, while also making a reference to prohibition.
- venomsnake 13y ago
  50 years from now cash may as well be outlawed because of that pesky anonymity thing.
aptwebapps 13y ago
Perhaps a compromise like being about to search your address book or other basic phone features but not files or programs which happen to be on the device? It seems that the latter, at least, should be included under 'papers and effects'.
leknarf 13y ago
The original arguments for "search incident to arrest" are for the arresting officers' safety (it's quite reasonable to check if a suspect has a weapon) and to prevent the destruction of evidence. I was surprised to read in the article that previous cases have "given the police broad discretion to search possessions on the person of an arrested suspect, including notebooks, calendars and pagers." Those decisions represented a significant loss of due process. I dislike the administration stance, but they have a fair point. A cell phone isn't substantially different than a paper notebook. Trying to draw an arbitrary distinction between physical and digital media is missing the point. We shouldn't be arguing for stronger protections of digital data. We should be arguing for stronger protections of all data, regardless of how or where it's stored.
shaggyfrog 13y ago
Fellow Canadian HNers: this is already allowed in Canada, if your cell phone does not have a passcode. If you haven't already put one on, even a trivial code, do it now. The recent court ruling that made it possible: http://canlii.ca/en/on/onca/doc/2013/2013onca106/2013onca106.html http://canlii.ca/en/on/onca/doc/2013/2013onca106/2013onca106... > [75] If the cell phone had been password protected or otherwise “locked” to users other than the appellant, it would not have been appropriate to take steps to open the cell phone and examine its contents without first obtaining a search warrant.
graycat 13y ago
Lesson: Just do not leave your home, where the Fourth Amendment still applies, with anything you don't want the police to have. For digital data, make sure any mobile device you have outside your home has all its data on your home server and that the digital device can be wiped clean of any cached data quickly.
fnordfnordfnord 13y ago
Get ready to be arrested for something _every time_ police notice you filming police activity.
jellicle 13y ago
Let's be clear about the future: in the very near future, every person will carry access to every piece of digital information they have ever interacted with, on their person, at all times. This is already pretty much true today; it will certainly be absolutely true tomorrow. Allowing warrantless searches of this pile of data eliminates any idea of needing search warrants at all.
- ohWhatever 13y ago
  Let's be clear about your hyperbole: in the very near future, everyone will read some news article about the shocking transgressions enabled by the retarded idea of just waltzing around with your entire life story on your person at all times, and they'll wisely avoid ever doing such a stupid, stupid thing. When you use words like "every", "any", "always" and "all", it can severely weaken your argument.
GauntletWizard 13y ago
Your cellphones and personal computers shouldn't be protected by the Fourth ammendment; They should be protected by the Fifth. More and more, cellphones, PCs, and even other people's servers are becoming invaluable, impossible-to-live-without brain extensions. That they should be allowed to be used against you in court is insane. The communications that they send and receive should be subject to well-overseen surveillance, but the devices themselves are as much you as you are. I imagine a not too far off future where your glasses tell you your schedule, where haptic and audio feedback are constantly feeding you a stream of your important information; Where even moreso than today, your personal data network is you. There's a chapter in Accellerando ^1 where Manfred's glasses are stolen, and the thug who steals them becomes Manfred by simple virtue of putting them on and being overwhelmed by the signals. He's not a very good Manfred, but he quickly is more Manfred than the person he was. It's only a matter of time before "I" am my newsfeeds, e-mails, calendar reminders, etc. [1] http://www.antipope.org/charlie/blog-static/fiction/accelerando/accelerando-intro.html http://www.antipope.org/charlie/blog-static/fiction/accelera...
- DannyBee 13y ago
  The fifth amendment was only ever intended to be dealing with testimony - you couldn't be called as a witness against yourself (the history of why it exists makes this clear). That is, you literally can not be asked to testify against yourself, in a custodial interrogation, court, or other setting where it could be used as evidence against you in a criminal trial. It was never intended to prevent evidence you were stupid enough to write down from being used against you. So basically, "insane or not", the fifth was clearly not intended for this purpose, despite your attempt to view this as "an extension of yourself".
  - cgshaw 13y ago
    Attorney here. DannyBee is absolutely correct. To my knowledge, data on a computer would be handled like an offender's diary, and that is certainly admissible in court, assuming authentication that the diary was actually written by the offender. Data is interesting because authentication can arguable be harder to prove. (handwriting is pretty easy to attribute) The truth is, the founding fathers likely could not have imagined in their wildest dreams that we could have all of human history on a flash drive with us at all times. Trying to apply "how they would have thought" or "WWFFD" to every new technology is kind of insane.
brymaster 13y ago
This that same Obama that was on TV two weeks ago saying 'We don't have a domestic spying program' and that same Obama that a few days later was 'promising greater oversight and transparency and insisting he had no interest in snooping on ordinary citizens.' ?! This feels like an Orwellian nightmare that I just woke up in.
- einhverfr 13y ago
  If he spies on everyone, foreign or domestic, is it a "domestic spying program?"
  - brymaster 13y ago
    Yes, word games they play to mislead.
- adventured 13y ago
  Yep, they're all the same Obama. He's a politician, nothing more, and with all the negative connotations that implies.
prawn 13y ago
There was a story on Reddit recently of a policeman accessing a woman's phone during a traffic stop (I think), finding raunchy photos of her on there and forwarding them to himself. Anyone remember it? Removing barriers to access seems unfairly risky to me.
ndesaulniers 13y ago
Article by Timothy B. Lee, as in Sir Tim Berners-Lee father of the WWW??? :P
- tlrobinson 13y ago
  No, different TBL.
- tedunangst 13y ago
  You can click on the author's name to read his bio. Well, you could on the normal web version, anyway, instead of the print version that HN links to.
splrb 13y ago
Obama's gone totally rogue.
lessnonymous 13y ago
I don't see the problem. If I'm selling drugs out of my car and the police have the right to search it, then they have the right to search the paper notebook on the seat next to me. If there's a phone number in there then they can do what they want with it under the law: which could include working out where I live from it. To search my home they need a warrant. Which means they need probably cause. How is a cell phone any different? The law shouldn't be about storage capacity! If it is, then you're saying that they can search the 48 page notebook on the passenger seat, but the 128 page is off limits. That's ludicrous. Now under the 5th, he should have the right not to unlock it for the police. But they certainly have the right to seize it. The headline seems to be sensationalist and trying to surf the Snowden saga for readers. It's not related. Edit: I'm ignoring the sanity of prohibition laws, but just comparing this story to common sense.
- nickles 13y ago
  A cellphone serves as a digital container into one's life. As it is a connected device, the cellphone has access to potentially limitless information about a person since the data is not necessarily stored on the phone itself but rather on servers elsewhere. Finally, one typically does not have complete control over the data that resides on their phone (installing the Facebook application, for example, allows others to stream their content directly to your device). You're correct that this is unrelated to the NSA's surveillance programs. However, it does represent a threat to US citizens' constitutional protections.
deleted 13y ago
[deleted]
jemeshsu 13y ago
Obama administration == US government. True or false? Are they the same?
- harshreality 13y ago
  Are you trying to start a semantic debate about what the U.S. Government is? One possible definition of government is the executive branch, and the Obama administration, currently, is (close to) the least abstract definition of the executive branch of government. Equivalence relations are not defined with respect to things like the Obama administration and the U.S. Govt. In other words, your question is inadequately specified.
cupcake-unicorn 13y ago
I now keep a Nandroid backup of a blank "fake" OS around on my phone, for emergencies...why? I was detained crossing the Canadian border for an hour as the border patrol read through my personal emails on my phone and who knows what else. If I hadn't supplied the password willingly to them, I'm sure they would have refused me entry, so I couldn't do much about it. But having an OS to boot into on any device that's pretty cleared out and submitting that willingly works much better over denying the password. Of course, if you have any really sensitive stuff, this method wouldn't work super well, as the devices could be searched more thoroughly, but to stop harassment when crossing borders, at police stops, etc. I think it's a good idea.
magoon 13y ago
Our governments now investigate people, not crimes. This turning point is undeniably catastrophic.

280 points by eplanit 13y ago

BrianPetro 13y ago

To make sure you aren't carrying any top-secret files to the airport of course, I mean terrorism...

grandalf 13y ago

Let's all remember this kind of thing the next time we are inspired by a candidate's promises or rhetoric.

fixxer 13y ago
If we all stop having children, then there will be less inspired youth willing to buy any candidate's pack of lies. And the world will be full of crotchety old bastards like myself. Yay!
AlexandrB 13y ago
Okay. Who should Americans vote for then? Here's what the Conservative party had to say during the 2008 election cycle: "Although our country has thwarted new terrorist attacks since 2001, those threats do persist. That is why our reform of the Foreign Intelligence Surveillance Act was so vital, and why the Democrats' opposition to it was so wrong." Hmm, sounds like they were promising more of the same. If your suggestion is voting for an independent, is there a realistic scenario where an independent candidate could get elected in the United States?
- unknownian 13y ago
  >is there a realistic scenario where an independent candidate could get elected in the United States? Do you know about the 5% funding rule in the US? Why not vote for a third party?
  - enraged_camel 13y ago
    >>Why not vote for a third party? Because it does nothing.
    - jlgreco 13y ago
      Neither it seems, does voting for one of the two main parties.
      - enraged_camel 13y ago
        You have a fourth option.
        jlgreco 13y ago
        There are several other options, some more practical than others. If only we required a hard majority of Americans to vote for somebody for them to win, then abstaining from voting could become an option with teeth. Then candidates would have to convince the public that they should vote for them, rather than just convincing the public not to vote for the other guy. Abstaining is, in my opinion, a respectable choice. Any vote is a vote of confidence in the system; if everybody who didn't like any of the candidates just stayed home instead of "voting for the lesser evil", then the farce that is our democracy would be made plain. Abstaining isn't the only interesting option though. Another option is enfranchisement where instead of voting on the behalf of yourself you instead vote on the behalf of one of the billions of disenfranchised. National elections in developed countries don't just affect the nation in question but rather the world. The lives of many in other countries literally hangs in the balance during American elections but they are not permitted to participate. Perhaps worse, many Americans are not permitted to vote just because they are not recognized as 'citizens'. Next election, perhaps instead of abstaining, vote on the behalf of somebody who is not represented. An individual doing this is not going to change anything but a national enfranchisement campaign has the potential to be subversive. We need a discussion on what being a democracy actually means.
        13y ago
- danenania 13y ago
  "If your suggestion is voting for an independent, is there a realistic scenario where an independent candidate could get elected in the United States?" How about a scenario in which all the people who claim to be voting for the lesser of two evils reevaluate their own defeatist attitude? If the only thing stopping a significant enough percentage of people from voting for a 3rd party is the perceived inability to win, then it's just a coordination problem. It would be interesting to see a poll asking "If you knew the candidate you voted for could win, who would you vote for?" Another argument for voting according to your principles is that based on the electoral college system, only people living in a few states actually contribute to the outcome of the election with their votes, so if you don't live in one of those states, you might as well show your support for someone you don't consider to be evil.
  - AlexandrB 13y ago
    > How about a scenario in which all the people who claim to be voting for the lesser of two evils reevaluate their own defeatist attitude? If the only thing stopping a significant enough percentage of people from voting for a 3rd party is the perceived inability to win, then it's just a coordination problem. I think that's a bit idealistic. A lot of people voted Ralph Nader in 2000, and while it's up for debate whether this cost Gore the election, I think many voters are now turned off the idea. In a close con/dem race, I think many would rather have some of their positions represented by the resulting POTUS than shoot for the moon and risk "splitting the vote". One of the major parties would have to do some truly outrageous shit and alienate their base before this dynamic changes.
    - snth 13y ago
      > One of the major parties would have to do some truly outrageous shit and alienate their base before this dynamic changes. For me, recent events qualify.
    - cgranade 13y ago
      I agree with you, but I'd have hoped the outrageous shit happening now would be enough to break the two-party dynamic, but I'm rather doubting it, having seen that the reactions are defined by the media in an entirely two-party manner. I think if anything from the NSA leaks changes this dynamic, it will be the exodus of technology dollars from the US.
- pedro84 13y ago
  Seems pretty clear that it's time for the next generation (cyber-citizen party?) to start running for office. /me writes in tptacek / cperciva
- GoodIntentions 13y ago
  >>Hmm, sounds like they were promising more of the same. >>If your suggestion is voting for an independent, is there a realistic scenario where an independent candidate could get elected in the United States? Do you feel disenfranchised yet?
- einhverfr 13y ago
  Voting should be a minor part of political advocacy. Make noise. Vote for the parties that will listen to you and try to make policy in favor of what you demand. If they disappoint, kick them out of office by voting for the other guys or at least issuing a protest vote. What voting does is it gives bite to all the rest of the political action one does during a term of elected office. It is what makes political speech effective. It does not replace it.
- Zoomla 13y ago
  vote for nobody... if there is a very small percentage of the population that votes, can they really say that this is a democracy?
- pvdm 13y ago
  Vote Green. http://stallman.org/ http://stallman.org/
acheron 13y ago
Anyone who gets "inspired" by politicians is dangerous. A politician should cause mild disgust, at best.
- deleted 13y ago
  [deleted]
  - fetbaffe 13y ago
    The difference would have been that then everyone had rallied against the evil Republican. Now instead you are called a racist for even implying that Obama is an authoritarian statist. Look what happened to the rodeo clown.

fixxer 13y ago

I get the argument that data I store on the Cloud is open to interpretation given the 3rd party (if I give Google the right to look at my data, then it is unreasonable for me to expect privacy on par with a physical drive in my possession), but data stored on my cell (a physical piece of equipment in my possession)? WTF?

tptacek 13y ago
I carry around a Tom Bihn bag. I do not generally let people look inside of it. When stores ask, I leave. However, if I'm arrested, the police will be allowed to search that bag, despite it being a physical pice of equipment in my possession. That's because the police do get to search you, rather thoroughly, if you're arrested.
- fixxer 13y ago
  But you still have some expectation of privacy. Search is supposed to be limited to the area within their immediate control for purpose of seizing any weapons or "obvious evidence related to or separate from the crime incident to the arrest". I guess it comes down to how we define obvious. Is the file system on my phone obvious? EDIT: Tom Bihn? You need to get a CountyComm EOD Utility Bag. Nothing says "hello" to TSA like a bag with pockets designed for M4 clips.
  - deleted 13y ago
    [deleted]
- libraryatnight 13y ago
  I was about to write a response about how my cell phone isn't a bag. But, then I realized I feel almost as dirty knowing they could go through the bag as I do thinking they might be able to go through my phone. If I've already been arrested for something, why do they need to be in my bag? Clearly they already had what they needed to arrest me in the first place, why poke around for more? (sometimes your posts make me paranoid) *edit: I understand officer safety, but thinking of already being arrested I assume I'm in custody, and effectively neutralized. And, if I never made any motion or gesture towards my bag it seems safe to assume I am not armed or if I am it's not to hurt the police. Maybe I just am not thinking criminal enough ;)

jobu 13y ago

Yeah, that'll never be abused...

codeka 13y ago

It's an interesting question. I think the specific circumstances described in the article, where the police looked in the suspect's phone to find his home address is arguably not a bad search. But as they point out in the article, how far can you take it? Can you look up a person's recent contacts? His browser history? His "downloads" folder? His emails? It seems like a very small step from looking up the last few people he called to going through all his emails...

tptacek 13y ago
It is interesting! If you get arrested driving your car, the police can't then go to your house and copy all your private papers; they need to get a warrant to do that. But in 2013, you're as likely to be carrying around all your private papers as you are to keep them in your house. So it can't reasonably be the case that an arrest gives the police access to your accounts online!

gms 13y ago

It is interesting to consider what the implications of this would be. Does this mean the police would be able to open the Facebook app on my iPhone, and browse my profile as well as all my friends'? Including all wall posts, messages, photos, etc? Technically, none of this is stored on the phone itself.

tptacek 13y ago
Maybe that's like the car/house analogy: the stuff on your actual phone is like what's in plain view in the passenger compartment of your car, but the stuff in your Facebook account is like what's back at your house. But then, that only buys us a couple more years of reasonable delineation; eventually technology will get us to a place where all the data we want to protect is always resident with us.

tptacek 13y ago

Careful about the "warrantless" here. It's true, it's a warrantless search, and don't think I'm saying that's an illegitimate concern. However: The police already have broad authority to search you and your immediate person incident to an arrest. If this is news to you, you really want to read up on it. This is one of the big things that makes a formal arrest different from mere detention, and one of the reasons the ACLU guides and things like that instruct you to clearly ask if you're "under arrest". All the DoJ is saying here is that a cellphone is, like your pockets and your bags, a legitimate target of a search incident to arrest. There's apparently a circuit split on the issue. There are other things that aren't legit incident to arrest; for instance, certain kinds of car searches aren't lawful solely because of arrest (trunks can be searched if cars are impounded, but only for "inventory", and can't be searched IIRC if the car isn't impounded; similarly, being arrested outside won't give the police the automatic authority to search your house).

cgshaw 13y ago
Attorney here. The search incident to lawful arrest doctrine is rooted in officer safety. Specifically, the Court says officers should have the ability to look for guns and contraband when someone is pulled over and it's likely they are armed or their immediate person or vicinity poses a threat and/or has evidence of a crime. The courts have decided that any drug suspicion means they are likely to have a weapon, which is unfortunate, but at least based in some reality. To my knowledge, the only court (and courts are split) that has allowed electronics to be searched is when a drug dealer was pulled over in California and incident to lawful arrest, the officer downloaded the call history to help them find others involved in the drug trade. There is NO COURT to my knowledge that would authorize warrantless search or confiscation of someone's cell data, computer data, jump drives, etc. without an arrest taking place. That is a fishing expedition and it's exactly what the Court has ruled unconstitutional under the 4th amendment. This is where I get very frustrated with the NSAs ability to collect the call information in the first place. The only reason to collect it is to fish later—that's not how the law is supposed to work. These are complex problems that very few judges or lawmakers have enough understanding of technologically to make informed judgement, IMHO, however. EDIT - My best guess is that the Court will allow basic access to a cell phone taken in a lawful arrest. I.E., like the article linked above, an officer would be able to look at the call history, but not necessarily download the content of the phone. I think the offender's brief will likely ARGUE that the phone not be accessed at all, with the true hope being the Court merely limits what officers can do. I have a hard time believing they won't let officers look at any of the electronics with them. I also hope they don't just let officers download everything carte blanche.

wtvanhest 13y ago

I prefer that police have less power than more power. That being said, this is how a system of checks and balances should work. I'm hoping the supreme court says no but if they say yes, I am at least happy that the correct process was used rather than police continue to search phones while waiting for a supreme court decision.

jcampbell1 13y ago

> In 2007, the police arrested a Massachusetts man who appeared to be selling vodka from his car. The cops seized his cellphone and noticed that it was receiving calls from “My House.” They opened the phone to determine the number for “My House.” That led them to the man’s home, where the police found vodka, cash and guns. 50 years from now, this article is going to seem like a bad joke.

anfedorov 13y ago
The article currently says "drugs, cash, and guns". Was that changed, or are you making a joke?
- dwaltrip 13y ago
  He is implying the drug war will have ended, while also making a reference to prohibition.
venomsnake 13y ago
50 years from now cash may as well be outlawed because of that pesky anonymity thing.

aptwebapps 13y ago

Perhaps a compromise like being about to search your address book or other basic phone features but not files or programs which happen to be on the device? It seems that the latter, at least, should be included under 'papers and effects'.

leknarf 13y ago

The original arguments for "search incident to arrest" are for the arresting officers' safety (it's quite reasonable to check if a suspect has a weapon) and to prevent the destruction of evidence. I was surprised to read in the article that previous cases have "given the police broad discretion to search possessions on the person of an arrested suspect, including notebooks, calendars and pagers." Those decisions represented a significant loss of due process. I dislike the administration stance, but they have a fair point. A cell phone isn't substantially different than a paper notebook. Trying to draw an arbitrary distinction between physical and digital media is missing the point. We shouldn't be arguing for stronger protections of digital data. We should be arguing for stronger protections of all data, regardless of how or where it's stored.

shaggyfrog 13y ago

Fellow Canadian HNers: this is already allowed in Canada, if your cell phone does not have a passcode. If you haven't already put one on, even a trivial code, do it now. The recent court ruling that made it possible: http://canlii.ca/en/on/onca/doc/2013/2013onca106/2013onca106.html http://canlii.ca/en/on/onca/doc/2013/2013onca106/2013onca106... > [75] If the cell phone had been password protected or otherwise “locked” to users other than the appellant, it would not have been appropriate to take steps to open the cell phone and examine its contents without first obtaining a search warrant.

graycat 13y ago

Lesson: Just do not leave your home, where the Fourth Amendment still applies, with anything you don't want the police to have. For digital data, make sure any mobile device you have outside your home has all its data on your home server and that the digital device can be wiped clean of any cached data quickly.

fnordfnordfnord 13y ago

Get ready to be arrested for something _every time_ police notice you filming police activity.

jellicle 13y ago

Let's be clear about the future: in the very near future, every person will carry access to every piece of digital information they have ever interacted with, on their person, at all times. This is already pretty much true today; it will certainly be absolutely true tomorrow. Allowing warrantless searches of this pile of data eliminates any idea of needing search warrants at all.

ohWhatever 13y ago
Let's be clear about your hyperbole: in the very near future, everyone will read some news article about the shocking transgressions enabled by the retarded idea of just waltzing around with your entire life story on your person at all times, and they'll wisely avoid ever doing such a stupid, stupid thing. When you use words like "every", "any", "always" and "all", it can severely weaken your argument.

GauntletWizard 13y ago

Your cellphones and personal computers shouldn't be protected by the Fourth ammendment; They should be protected by the Fifth. More and more, cellphones, PCs, and even other people's servers are becoming invaluable, impossible-to-live-without brain extensions. That they should be allowed to be used against you in court is insane. The communications that they send and receive should be subject to well-overseen surveillance, but the devices themselves are as much you as you are. I imagine a not too far off future where your glasses tell you your schedule, where haptic and audio feedback are constantly feeding you a stream of your important information; Where even moreso than today, your personal data network is you. There's a chapter in Accellerando ^1 where Manfred's glasses are stolen, and the thug who steals them becomes Manfred by simple virtue of putting them on and being overwhelmed by the signals. He's not a very good Manfred, but he quickly is more Manfred than the person he was. It's only a matter of time before "I" am my newsfeeds, e-mails, calendar reminders, etc. [1] http://www.antipope.org/charlie/blog-static/fiction/accelerando/accelerando-intro.html http://www.antipope.org/charlie/blog-static/fiction/accelera...

DannyBee 13y ago
The fifth amendment was only ever intended to be dealing with testimony - you couldn't be called as a witness against yourself (the history of why it exists makes this clear). That is, you literally can not be asked to testify against yourself, in a custodial interrogation, court, or other setting where it could be used as evidence against you in a criminal trial. It was never intended to prevent evidence you were stupid enough to write down from being used against you. So basically, "insane or not", the fifth was clearly not intended for this purpose, despite your attempt to view this as "an extension of yourself".
- cgshaw 13y ago
  Attorney here. DannyBee is absolutely correct. To my knowledge, data on a computer would be handled like an offender's diary, and that is certainly admissible in court, assuming authentication that the diary was actually written by the offender. Data is interesting because authentication can arguable be harder to prove. (handwriting is pretty easy to attribute) The truth is, the founding fathers likely could not have imagined in their wildest dreams that we could have all of human history on a flash drive with us at all times. Trying to apply "how they would have thought" or "WWFFD" to every new technology is kind of insane.

brymaster 13y ago

This that same Obama that was on TV two weeks ago saying 'We don't have a domestic spying program' and that same Obama that a few days later was 'promising greater oversight and transparency and insisting he had no interest in snooping on ordinary citizens.' ?! This feels like an Orwellian nightmare that I just woke up in.

einhverfr 13y ago
If he spies on everyone, foreign or domestic, is it a "domestic spying program?"
- brymaster 13y ago
  Yes, word games they play to mislead.
adventured 13y ago
Yep, they're all the same Obama. He's a politician, nothing more, and with all the negative connotations that implies.

prawn 13y ago

There was a story on Reddit recently of a policeman accessing a woman's phone during a traffic stop (I think), finding raunchy photos of her on there and forwarding them to himself. Anyone remember it? Removing barriers to access seems unfairly risky to me.

ndesaulniers 13y ago

Article by Timothy B. Lee, as in Sir Tim Berners-Lee father of the WWW??? :P

tlrobinson 13y ago
No, different TBL.
tedunangst 13y ago
You can click on the author's name to read his bio. Well, you could on the normal web version, anyway, instead of the print version that HN links to.

splrb 13y ago

Obama's gone totally rogue.

lessnonymous 13y ago

I don't see the problem. If I'm selling drugs out of my car and the police have the right to search it, then they have the right to search the paper notebook on the seat next to me. If there's a phone number in there then they can do what they want with it under the law: which could include working out where I live from it. To search my home they need a warrant. Which means they need probably cause. How is a cell phone any different? The law shouldn't be about storage capacity! If it is, then you're saying that they can search the 48 page notebook on the passenger seat, but the 128 page is off limits. That's ludicrous. Now under the 5th, he should have the right not to unlock it for the police. But they certainly have the right to seize it. The headline seems to be sensationalist and trying to surf the Snowden saga for readers. It's not related. Edit: I'm ignoring the sanity of prohibition laws, but just comparing this story to common sense.

nickles 13y ago
A cellphone serves as a digital container into one's life. As it is a connected device, the cellphone has access to potentially limitless information about a person since the data is not necessarily stored on the phone itself but rather on servers elsewhere. Finally, one typically does not have complete control over the data that resides on their phone (installing the Facebook application, for example, allows others to stream their content directly to your device). You're correct that this is unrelated to the NSA's surveillance programs. However, it does represent a threat to US citizens' constitutional protections.

deleted 13y ago

[deleted]

jemeshsu 13y ago

Obama administration == US government. True or false? Are they the same?

harshreality 13y ago
Are you trying to start a semantic debate about what the U.S. Government is? One possible definition of government is the executive branch, and the Obama administration, currently, is (close to) the least abstract definition of the executive branch of government. Equivalence relations are not defined with respect to things like the Obama administration and the U.S. Govt. In other words, your question is inadequately specified.

cupcake-unicorn 13y ago

I now keep a Nandroid backup of a blank "fake" OS around on my phone, for emergencies...why? I was detained crossing the Canadian border for an hour as the border patrol read through my personal emails on my phone and who knows what else. If I hadn't supplied the password willingly to them, I'm sure they would have refused me entry, so I couldn't do much about it. But having an OS to boot into on any device that's pretty cleared out and submitting that willingly works much better over denying the password. Of course, if you have any really sensitive stuff, this method wouldn't work super well, as the devices could be searched more thoroughly, but to stop harassment when crossing borders, at police stops, etc. I think it's a good idea.

magoon 13y ago

Our governments now investigate people, not crimes. This turning point is undeniably catastrophic.