Slashdot Mirror
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.
Well, can the police read, say, my notebook, kept in my backpack in the car? Can they look at my wallet full of business cards and contacts? What if these papers and information are protected by attorney or medical privilege? What if these are my (HIPAA-protected) health records? These seem to be the closest analogues to what's on my iPhone, apart from the actual phone itself.
http://truecrypt.org/ and similar tools may be of use. Not only can you protect an arbitrary volume with tc, you can hide another container inside it in a truly undetectable way.
If you want anything secure, put it in a high capacity memory stick or SD card. keep them seperate. they can look over the laptop all they want they will not find anything I don't want them to find.
Come on people, Hackers, spies, political dissidents, and those persecuted by their government have had to do this all their lives. Now all US citizens have to do the same.
it's the price we pay for being safe from T E R R O R I S M .
Do not look at laser with remaining good eye.
Not at all- the 2nd amendment specifically says "well regulated militia". That doesn't mean they have a clear right to bear all arms, bear arms outside of their duties as a militia, or bear arms with no regulations. Meanwhile an electronic device is an exact equivalent to paper. We even call them files and documents.
I still have more fans than freaks. WTF is wrong with you people?
IANAL, but I am a law student and this claim rather inflammatory. If you read the link for "search incident to arrest" in the summary, you'll see the trend of the Supreme Court's cases has been to narrow the scope of permissible search under this doctrine. Basically, it stems from the very practical consideration that when arresting someone, officers need to secure the immediate area and they might discover evidence either on the defendant's person or in plain sight.
Yes, the iphone and laptops increase the amount of information a person is likely to have on her, but it's not a new issue. As a couple of posters have pointed out, the same problem arises when the arrestee is carrying a notebook or briefcase with documents. Given the Supreme Court's narrow cases on this doctrine, it seems unlikely that they're going to allow admission of the embezzlement evidence the police found on your iphone when they arrested you for drunk driving.
Clearly you dont know what "search incident to arrest" means. It really is one of the most egregious laws on the books.
A policeman can arrest you for anything, whether its valid or not is to be decided in the courts later. After the arrest, they can search the "area" you were arrested in. Anything they find, even if its not related to why you were arrested, is fair game to be used against you for new charges.
I will give you an example (that actually happened). You are pulled over for speeding. The cop asks if he can search your car, you say "no" and are within your rights to do so. The cop arrests you for the speeding offense (plus, if he wants he can throw something vague on there like 'obstruction' that will get thrown out by a judge), and then searches your card "search incident to arrest." Anything he finds, whether it be your laptop or anything else can be used against you. If you dont have anything bad in your car, well the judge will drop the obstruction charge and most likely the speeding at your first hearing. You can't complain, because nothing was done that was illegal.
No warrant. No 'probable cause' to deal with. Just police discretion. It happens all the time. Maybe its time to call you.
the byproduct of years of oppression by the white man
That point (an unproveable assertion, BTW) is totally irrelevant. The technology doesn't change our rights. We have the right to be secure in our papers and personal effects. That is obviously perfectly equivalent to records stored in the iPod. It might take a judge distracted by some arguing lawyers a few hours to decide that records stored elsewhere but accessed directly by the iPod are equivalent to the same old papers and effects, but it's an obvious conclusion.
The only relevant question is whether a cop stopping you for speeding or running a red light has probable cause to search your papers and personal effects for anything else. Which they obviously don't, especially since they've already got all the evidence of the moving violation crime they're accusing you of, and your preexisting papers could contain evidence of that only if they are accusing you of premeditated moving violations, which I think isn't even a legal charge.
The people who formulated and signed the Constitution were smart. So smart they didn't have to be able to conceive an iPhone. All they had to conceive was identifying our rights, and directing our government to protect them. And, along the couple centuries since then, we've updated their list of identified rights and required protections at least 17 more times. But none of those updates are because some gizmo appeared, even when some - like telegraphs, cars, airplanes, computers - transformed our society. Because we the people are still the same, with the same rights.
The rest of this crap is just an excuse for lawyers to make money and power brokers to steal more power from the people.
--
make install -not war
They have to find it. Micro SD cards are perfect for this. a tiny slit in your tennis-shoe at a seam and you can slip that thing in where they will never look. and you make it through the detectors perfectly. Hide it in your belt, etc... bigger SD cards are as easy to hide as well.
Hiding those things are better than encryption... they cant interrogate you about something they did not find.
PS, micro SD cards hide nicely under large postage stamps on envelopes and in between layers of cardboard on boxes.
Do not look at laser with remaining good eye.
In all seriousness, I think people should recognize that an 18th century arm is not quite the same as a 21st century arm. In the 18th century, it was a manually reloaded rifle or bayonet. Today, an arm can be anything from a handgun to an assault rifle to a nuclear weapon. No one argues that the Constitution guarantees the right to possess nukes, so the question is not whether to draw a line but where to draw it. Given this, I think that it is completely fair to ban assault rifles.
No, its the same thing as braking into someones personal safe with a court order to do so.
You have no obligation under the 4th amendment to give them the combination to the safe, but with a warrant they do have the right to try to break into it.
Glad to see the discussion get back on topic. Agree w/ posters that we must protect our data on phones, laptops, et al, with encryption and passwords. We can't leave the custody of our privacy entirely in the hands of the state. That's an invitation to abuse.
But I do need to correct the interpretation of the 2nd Amendment by some posters who believe the leading subordinate clause irrelevant. The framers were classically trained and assumed we would be as well. Anyone familiar with Latin would recognize the phraseology as the ablative absolute. The correct way to read it in modern English would be, "Because a well-regulated militia is necessary...."
They would have worded it this way had it been good form to begin a sentence with a conjunction like "because", but they took their grammar seriously, and we've forgotten it all (at our peril).
-- "The only thing that is ever new in the world is the history you do not know." -- Harry Truman
Olmstead v. US (1928):
."
"The protection guaranteed by the [Fourth and Fifth] Amendments is much broader in scope. The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man's spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone - the most comprehensive of rights and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment. . .
filter: +3. Hey, look! all the trolls went away!