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The iPhone Meets the Fourth Amendment
background image writes "According to Alan M Gershowitz, the doctrine of "search incident to arrest" may allow devices such as mobile phones, PDAs and laptops to be thoroughly searched without either probable cause or warrants [PDF download below abstract]. Incriminating evidence found in such searches may be used against you whether or not it is germane to the reason for the original arrest. He notes, 'Obviously, the framers of the Fourth Amendment could not have conceived of a handheld technological device like the iPhone, and courts have not yet been called upon to answer most of the difficult questions posed by such devices.' We've discussed similar search issues recently, as well as other privacy concerns related to modern technology.
They are papers and/or personal effects, and should be treated accordingly under the law. How hard can that be to understand?
Lock your phone people and then provide the code when a warrant is given. Nothing is in plain view and therefore not subject to search without *consent* or *warrant*.
Gawd, some of this sounds like a plug for the iPhone: "The iPhone drastically changes this situation for two reasons. First, the iPhone stores tremendously more information thereby providing law enforcement with access to information that the typical arrestee would never carry in his pocket. In addition to the text messages, contacts, and call histories found on conventional phones, iPhones also contain an iPhoto function that holds far more pictures than could be stored on a conventional cell phone and displays them in much clearer detail. The iPhone also contains an easily accessible email application making it simple to access thousands of new, saved, and sent email messages. The iPhone permits users to store thousands of audio and video files. Music, books, and videos ranging from Beethoven to potentially obscene pornographic videos can be accessed with the touch of a few buttons. Second, and perhaps more important than the data stored under these functions is that the iPhone provides a mechanism for accessing information not presently stored on the phone. The iPhone contains an internet browser just like the one found on a standard computer. Thus, it can "dial out" and retrieve information not presently stored within the confines of the device." The title is (kind of) misleading - there's nothing legally specific to the iPhone that renders it subject to these laws (any mobile phone/PDA phone would potentially be under the same scrutiny). The author of TFA does, however, deal solely with the iPhone.
This same article could've been written about Blackberries 5 years ago, or Palm Pilots 10 years ago, or laptops 20 years ago, or personal calendars 100 years ago. They just used iPhone to grab attention, which pretty much instantly lowers their credibility.
The founders couldn't have conceived of a pocket sized device that can store arbitrary information?
WTF? Have you been smoking the meth again?
There is NOTHING radical about the difference between a pocket sized notebook (little black book) and an iphone.
So it can record your voice instead of having to use a pen or pencil and writing information down.
Whatever. Nobody believes US law has anything to do with the constitution any more anyway.
There's a lot of discussion about stuff like this, but it's meaningless. The fact of the matter is, until the law or the courts say otherwise, your data is protected under the fourth amendment. Oh sure, law enforcement _wants_ to be able to search your data without a warrant, but they also would like to search your house and your car and just about anything else without a warrant too.
For now, there _is_ an expectation of privacy for your data, and until a law says otherwise you can expect that the results of a warrantless search to be thrown out. And if they aren't, you can appeal it up to the supreme court, at which point _they'll_ thrown them out. Period. There is no argument that can be made, even to people that don't understand computers, that makes computers any different than (paper) notebooks. Hell, there are even laws against computer trespassing. That law all but explicitly says that computers have an expectation of privacy.
Finally, here's the other thing to keep in mind: How are they getting you iPhone/laptop anyway. Even if there's no expectation of privacy for the data, there is (usually) for where it's physically sitting. It's not like a cop can walk up to your house and say: "Hi, I'm here to search you computers without a warrant". If they did, you don't have to let them in.
IANAL, but I believe that the intention of allowing searches incident to arrest is to prevent the suspect from accessing a weapon or destroying evidence. Since you cannot store a mac-10 in your iphone, this should be ruled out. So, the only logical time when an iphone or similar device can be searched is if the arrest is for a crime that can be linked to some sort of electronic device; child pornography, harassment, voyeurism, etc. If I am being arrested for starting a fight in a bar, there is no reason to go through my digital property, right?
It might be worth pointing out that, while the iPhone may be searched, it's not just a random 'I think I'll look through that guy's pockets' type search (not ostensibly anyway), but only an incident to arrest (if I remember the term correctly, though I'm from the UK not the US...). So, how I understand it, if a person is arrested for anything from solicitation, drug dealing or having a faulty brake-light, items in their possession may be searched by the police.
I guess the easiest way, in principle, would be to avoid arrest in the first place. Of course as legislation increases that, in itself, becomes more problematic. Whether or not I agree with the rights of the police to randomly search property following an arrest, particularly for evidence unrelated to the original arrest (I don't) is moot; but I thought it'd be worth pointing out.
It's also been discussed on Techdirt recently.
The "war on drugs" has been simply ruinous for the U.S.; the police have been transformed into a paramilitary force, and Constitutional protections for everyone else have been watered down. All of this money spent, freedom lost, and people imprisoned, with absolutely no measurable benefits.
Isn't probably cause or a warrant required before you are arrested in the first place?
http://outcampaign.org/
It is crystal clear that searches incident on arrest are common, and encompass pretty much everything within the car or on the person arrested. The question the author asks is that considering how much personal life is carried on an iPhone (which is used as a generic term for a gadget that does phone, text messages, email, webbrowser, pictures, voice, movies, calendar and more), does this type of search constitute an unreasonable search of personal property? He doesn't have an answer, but he proposes a couple of options, none of which are very fun.
My question though is: what if your phone is locked? The only reference in the pdf is about a state case that ruled that locked glove boxes can not be part of this type of search. On the other hand, federal law seems to force people to open up locked items as well.....
This entire discussion could be rendered moot by the simple act of locking your device. I'm hoping that locked devices will not become part of these types of searches, but I'm not convinced.... Especially with the entire problem "there be terrorists!", we could see laws similar to Great Britain's where you are forced to hand over passwords.
Those who can, do. Those who can't, sue.
It's a sad day when a Slashdot summary on Fourth Amendment issues apparently requires a gratuitous reference to the iPhone in the headline just to catch our attention.
SIERRA TANGO FOXTROT UNIFORM
That point (an unproveable assertion, BTW) is totally irrelevant. The technology doesn't change our rights.
Well, yeah, and think about it. Let's even assume that the founder would be incapable of "conceiving" of such a device. After all, it is pretty freaking amazing compared to 1700s technology. So let's just say you could raise one from the dead and show him an iPhone and show him how it lets you communicate with others, and lets you store personal documents and contact information, and he'd say "Incredible! I never would have conceived of such a wondrous Device!"
And then once he'd gotten over his amazement, you asked him "Okay, so do you think something like this counts as 'papers' or 'effects' with regards to the 4th Amendment? Do you think police should be able to confiscate and search through this device without probable cause or a search warrant? Is that what you intended when you wrote it, that it be limited to literal papers and nothing more advanced?"
What the flying fuck do you think he would say?
This "Oh but times have changed" BS is nothing but a way for them to sweep the principles that our country was founded on under the rug of technicalities.
The enemies of Democracy are
The founders did not have to conceive of all the ways our persons, houses, effects and "papers" could manifest in the future for the prohibition against arbitrary search and seizure to extend to all such manifestations. Anyone who says differently is an un-American scoundrel who never understood one iota of this country is supposed to be about. Computers are extension of our minds. Perusing our computers without our consent and without warrant is nothing less than mind rape. We The People must treat it that way if we are to have a chance of remaining free.
The Fifth Amendment says that I can not be compelled by police or a court to surrender my passwords.
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