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In the past it hasn't been the case that we carry around all of our personal documents, correspondence, address books, photography, digital currency/payment, an

by jka 13y ago

In the past it hasn't been the case that we carry around all of our personal documents, correspondence, address books, photography, digital currency/payment, and so on. Setting a precedent that this private information -- and that is what I believe most people would consider the contents of their phones to be -- can be searched whenever you are stopped by police will only cause real criminals to use disposable/non-smart-phones, and further set a trend towards law enforcement being able (and people considering it normal) to access this information routinely. Litigation overhead is one consideration, but I think the whole legal system is so horribly behind technology advances in general that I'm not sure it's a valid argument just to streamline the arrest/search process.

bcent 13y ago
I agree that the law is horribly behind. The flip side of your argument, is that a criminal could store his entire criminal enterprise on a phone. While I feel it's certainly an invasion of privacy to allow the police full access to my phone in the event of an arrest. I also feel like some enterprising criminal might offer his friends the ability to remotely wipe their phones in the event of their arrest. Effectively destroying the best source of evidence against someone who uses their phone as a central point of control for criminal activity. Not sure what a middle ground would be, but I sure hope that someone finds one.
- betterunix 13y ago
  Why should we seek a middle ground? Yes, sometimes criminals will evade prosecution by taking advantage of their civil rights. That does not mean that we should be curtailing civil rights. Let's put it this way: we have more prisoners than any country on the planet. I do not think we should be concerned about the difficulties police and prosecutors face with evidence collection.
  - rayiner 13y ago
    > Let's put it this way: we have more prisoners than any country on the planet. I do not think we should be concerned about the difficulties police and prosecutors face with evidence collection. I shouldn't have to tell you the illogic of this argument.
rayiner 13y ago
> but I think the whole legal system is so horribly behind technology advances in general I don't think the legal system is "behind technology advances" at least usually. I think the reason technologists think that is because they see technology as unprecedented and game-changing (and all those buzz-words). As a result, they think that technology should get special treatment, instead of being analogized to existing practices and concepts. That's certainly a reasonable way to approach things, but it's a liberal interpretive doctrine. But, right now we're in the midst of a multi-decade conservative trend in the judiciary. The conservative concept is that there is nothing new under the sun, and even though things change, they can be tied back to enduring principles and basic concepts. My read is that the judiciary doesn't really fail to understand technology. Judges are smart people. People explain all sorts of complex things to them all the time. Explaining most technology is far simpler than explaining, for example, the complexities of a reinsurance agreement between commercial parties. Rather, the judiciary has consciously adopted the conservative tack of not treating technology specially. So in the cell phone context, it's not that judges don't understand that you can store all sorts of things on your cell phone. They have kids, they know what people store on their cell phones. Rather, they look at the underlying principles behind the rule: the potential for a suspect to destroy evidence in his possession. Well, that potential exists whether we're talking about a cell phone or a day planner. I.e. you can tie the technology back to a timeless concept (people write down their schedules and a suspect might destroy those notes if arrested). That's not a failure to appreciate the advances of technology--it's a conscious decision not to treat technology differently than existing things.

by jka 13y ago

bcent 13y ago

I agree that the law is horribly behind. The flip side of your argument, is that a criminal could store his entire criminal enterprise on a phone. While I feel it's certainly an invasion of privacy to allow the police full access to my phone in the event of an arrest. I also feel like some enterprising criminal might offer his friends the ability to remotely wipe their phones in the event of their arrest. Effectively destroying the best source of evidence against someone who uses their phone as a central point of control for criminal activity. Not sure what a middle ground would be, but I sure hope that someone finds one.

betterunix 13y ago
Why should we seek a middle ground? Yes, sometimes criminals will evade prosecution by taking advantage of their civil rights. That does not mean that we should be curtailing civil rights. Let's put it this way: we have more prisoners than any country on the planet. I do not think we should be concerned about the difficulties police and prosecutors face with evidence collection.
- rayiner 13y ago
  > Let's put it this way: we have more prisoners than any country on the planet. I do not think we should be concerned about the difficulties police and prosecutors face with evidence collection. I shouldn't have to tell you the illogic of this argument.

rayiner 13y ago

> but I think the whole legal system is so horribly behind technology advances in general I don't think the legal system is "behind technology advances" at least usually. I think the reason technologists think that is because they see technology as unprecedented and game-changing (and all those buzz-words). As a result, they think that technology should get special treatment, instead of being analogized to existing practices and concepts. That's certainly a reasonable way to approach things, but it's a liberal interpretive doctrine. But, right now we're in the midst of a multi-decade conservative trend in the judiciary. The conservative concept is that there is nothing new under the sun, and even though things change, they can be tied back to enduring principles and basic concepts. My read is that the judiciary doesn't really fail to understand technology. Judges are smart people. People explain all sorts of complex things to them all the time. Explaining most technology is far simpler than explaining, for example, the complexities of a reinsurance agreement between commercial parties. Rather, the judiciary has consciously adopted the conservative tack of not treating technology specially. So in the cell phone context, it's not that judges don't understand that you can store all sorts of things on your cell phone. They have kids, they know what people store on their cell phones. Rather, they look at the underlying principles behind the rule: the potential for a suspect to destroy evidence in his possession. Well, that potential exists whether we're talking about a cell phone or a day planner. I.e. you can tie the technology back to a timeless concept (people write down their schedules and a suspect might destroy those notes if arrested). That's not a failure to appreciate the advances of technology--it's a conscious decision not to treat technology differently than existing things.