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.

Comments

In archaic terms...

[Anonymous Coward]

They are papers and/or personal effects, and should be treated accordingly under the law. How hard can that be to understand?

Re:In archaic terms...

[urcreepyneighbor]

I'm not sure, but I wouldn't be surprised if it was the same method of thinking that allows some people to claim that the 2nd doesn't protect an individual's right to bear arms. Or arm bears, for that matter. ;)

However, to stay on topic, I must concur that this is so damn obvious - cells and laptops being the modern equivalent of papers - that this should have been addressed a long time ago.

Re:In archaic terms...

[AuMatar]

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.

Re:In archaic terms...

[exi1ed0ne]

Not at all- the 2nd amendment specifically says "well regulated militia".

The word "militia" must be read in the context of when the document was written. The modern day definition is quite different.

http://www.guncite.com/gc2ndpur.html

Re:In archaic terms...

[jtev]

Yes, it does. The well regulated militia clause is an independent clause. The meaning of the amendment would not be changed by its removal. The clause is a preamble, explaining the reasoning behind the amendment, not restricting it. But that's a common mistake.

Re:In archaic terms...

[bckrispi]

Apply the same to the 18th century definition of "regulated" as well.

Re:In archaic terms...

[squiggleslash]

This is actually just reflective of the lax attitude towards putting words in the right order in the 1700s. The original intent of the framers of the constitution was that every state should have a group of well armed bears to defend the country. The proper word order should have been "the right of the People to keep and arm bears shall not be infringed", but, well, English standards were laxer then.

Re:In archaic terms...

[DustyShadow]

The clause is a preamble, explaining the reasoning behind the amendment, not restricting it. But that's a common mistake. Don't be fooled. People who try to make that point are not doing it by mistake.

Re:In archaic terms...

[the_bard17]

I disagree. If the creators of the Bill of Rights wanted to specify a "well regulated militia" had the right to exist... they would've simply kept the wording at that, without introducing the phrase "the right of the people to keep and bear Arms".

In the context of the times, I can see them stating that the right of the people to keep and bear arms is an essential detail in keeping a well regulated militia... which, in turn, is an essential detail in keeping a "free state".

Define free state as you will, but by the time I need to pull the gun(s) out of my cabinet for use in a "campaign" on my homeland... I'm fairly sure I'll be able to tell you what it ain't. ;oD

Re:In archaic terms...

[Chris Burke]

The word "militia" must be read in the context of when the document was written. The modern day definition is quite different.

More importantly, the definition of "the People", to whom the right to bear arms is granted, has not changed at all.

Re:In archaic terms...

[Chris Burke]

It says well regulated militia, but it specifically says that the people's right to bear arms shall not be infringed.

Are you going to also argue that the 4th Amendment only grants a "collective" right to be free from searches? In both cases, the right is called "The right of the people "

Re:In archaic terms...

[Anonymous Coward]

Even more importantly, rights are not 'granted'.

Re:In archaic terms...

[Chris Burke]

True, true, and it doesn't say it's granting the right, it says that it shall not be infringed.

Re:In archaic terms...

[ptbarnett]

Apply the same to the 18th century definition of "regulated" as well.

Someone thought they should mod this funny, but the parent poster is correct.

Dig up an unabridged Oxford English Dictionary, and check out the definition for "regulated". There are examples dating back to the 1600's that use this term when referring to a militia, although they are now considered obsolete or archaic. In the context of a militia, the most appropriate synonym for "well-regulated" in the 17th and 18th centuries would be "effective" in the 21st century.

However, the first clause wasn't intended to limit the second clause. The Congressional Record shows that a "collective" interpretation was proposed in the Senate during the debate of the Bill of Rights by adding "for the common defense" (a phrase that was in at least one of the original 13 state constitutions). It was explicitly voted down.

Re:In archaic terms...

[ptbarnett]

Given this, I think that it is completely fair to ban assault rifles.

Using that logic, it would also be completely fair to ban or severely censor the Internet, because it is far more effective than the 18th century printing press.

Re:In archaic terms...

[John Courtland]

Why is it completely fair to ban assault rifles? Also, please define assault rifle in a succinct manner. Not trolling, I'm genuinely curious, I hope that you have a well thought out and solid answer.

Re:In archaic terms...

[Original Replica]

the most appropriate synonym for "well-regulated" in the 17th and 18th centuries would be "effective" in the 21st century.

But that begs the question, maintain a militia effective against what? The answer of course is that it is intended to allow for a militia effective against a government that oversteps it's bounds. However in odrer to be effective against the current government, not only would the gun control laws against fully automatic adn assault rifles have to be revoked, but people/militias would have to be legally be allowed to keep and practice with things like rocket propelled grenades. But as the much lauded rarely seen American spirit of Independence has vanished from our cultural mindset, so has the idea that we should maintain the ability to over throw our own government. In short, the more people actually believe the lie "The pen is mightier. than the sword" the more they have forgotten "Power flows from the barrel of a gun". The people who are spending 15% of every one of your paychecks on a war machine want you to go on thinking that rallies and op-ed pieces are as effective as "a well regulated militia". Do you really think that if millions of Americans were actually empowered to forcibly protect their rights, that we submit to The Patriot Act, Patriot Act II, etc?

Re:In archaic terms...

[Marful]

The well regulated militia clause is an independent clause.

"A well regulated militia being necessary to the security of a free State" is not an independent clause. It's dependent. This is easily observable by the lack of a verb.

The meaning of the amendment would not be changed by its removal. The clause is a preamble, explaining the reasoning behind the amendment, not restricting it.

Err... that requires more than an assertion.

Arguing over the 2A is kind of funny, considering there is so much documentation about its inception in the federalist papers and from the federalist convention.

As it was originally written by James Madison:

"The right of the people to keep and bear arms shall not be infringed; a well armed, and well regulated militia being the best security of a free country: but no person religiously scrupulous of bearing arms, shall be compelled to render military service in person."

It was however ratified to its current version because it was feared that the ability to decide who could and could not be eligible for the militia was deemed too much power in the hands of the federal government. Also "free country" was amended to "state" to allow for more state independence.

So yes, it is an independent clause.

Re:In archaic terms...

[Anonymous Coward]

But that begs the question, maintain a militia effective against what? The answer of course is that it is intended to allow for a militia effective against a government that oversteps it's bounds. However in odrer to be effective against the current government, not only would the gun control laws against fully automatic adn assault rifles have to be revoked, but people/militias would have to be legally be allowed to keep and practice with things like rocket propelled grenades.

Sure, I've seen this argument used before... However, with a little bit of thought, it's easy to observe that it's not true. Even with all of the protection and secret service and the FBI and the CIA and the NSA, it still only takes one well aimed bullet to kill a human, and if you can see them, they're vulnerable. Look at Kennedy. All of the nuclear weapons, machine guns, rockets, body guards in the world couldn't have saved him from a few shots from a gun that's comparable in power and range to most hunting rifles. This is why so many states are interested in outlawing .50BMG rifles. It's the bad boy that can reach out and touch a politician from, well a long, long way away--and shred 'em to pieces when it does. Fortunately, there are rounds with similar long range ballistics.

At any rate, if the people get angry enough to turn against the government, the government officials, even if they manage to evade being immediately killed will not live much of a life--if they poke their heads out even a little, they'll get wiped out... Doesn't matter if it's from a mile away, or a few feet away. Plus, consider that our military during times of peace consists of volunteers. They're citizens, and people just as you are. You really think most of the armed forces are going to unload their stuff on their own people, because they're ordered to do so? Hell, chances are they'll work their way up the ladder just the same.

Re:In archaic terms...

[Doctor_Jest]

In short. You're full of it. (except the electronic device part... spot on!)

In detail (with respect to the 2nd Amendment)... you are completely full of shit, so much so that if someone squeezed your head, you'd become a chocolate fountain. :)

The RIGHT OF THE PEOPLE TO KEEP AND BEAR ARMS SHALL NOT BE INFRINGED. In deference to the militia? Sure, make me muster once a month in the town square with my shotgun and .357... I don't care... but goddamnit, THE GOVERNMENT CANNOT INFRINGE ON MY RIGHT TO KEEP AND BEAR ARMS. End of story. There is no debate... there is no room to wiggle... there is no reason to try to take my guns in order to nanny-fy the US and "think of the children" or other nonsense. You have the personal liberty NOT to own a gun. You have neither the right nor the privilege to tell _ME_ that I cannot. That's the beauty of the Bill of Rights... RIGHTS... not "suggestions"... not "would be nice to have..." RIGHTS... rights that exist IRRESPECTIVE of any government... rights that are in the Constitution to remind those in power where THEIR boundaries are... WE THE PEOPLE, damnit!

Read some Jefferson, you'll come away with a different perspective on most everything regarding personal liberty...

As you can see, this is a very personal issue with me, considering all the mamby-pamby mushmouths trying to take my right away, that they clearly have NO authority or ability to do... but they still try. The Constitution is sacred... the Bill of Rights is sacred... that means I will defend it with my life if need be... and if it means eliminating people who are trying to undo that... so be it.

I am flexible on just about everything (but Disney... fuck them in the ass with a big rubber dick)... but the Constitution is not up to "negotiation" in my book. And I will not surrender my rights for ANY reason... my freedom is too precious to give away so someone can feel better about themselves.

As a gun owner, anti-gun people can march on the White House steps for all I care... it doesn't change MY RIGHT to KEEP and BEAR arms. Sorry... case closed.

Re:In archaic terms...

[Manchot]

I am arguing that a line needs to be created defining what arms are permitted to bear and what aren't. If you disagree with this statement, you are affirming that the Constitution guarantees you the right of each citizen to bear nuclear arms. I am assuming this is not the case.

Now, you say that using my logic, one could ban the Internet because it is more effective than the printing press. This is incorrect. First of all, there isn't such a thing as "too much" freedom of speech, or "too much" freedom of the press. As I already demonstrated, however, there is such as thing as "too much" right to bear arms. Therefore, while no line needs to be drawn for freedom of the press, one does need to be drawn for the right to bear arms. Secondly, and more importantly, I am not arguing that assault rifles are too effective; I am arguing that while they might be protected by the letter of the law, they are not covered by the spirit of it.

To use an example, suppose that in the future, the phrase "the Press" becomes slang for "randomly kill someone on the street for sport." Would you then have freedom of "the Press?" Certainly not! The spirit of the Second Amendment is to allow you to be able to protect yourself and your neighbors, either from an intruder, a foreign government, or a hostile domestic one. As long as you are able to do this, your rights are preserved.

Re:In archaic terms...

[djh101010]

How about 'automatic firearm'? Anything where you can hold down the trigger to hose down an area with bullets goes against the rules of safe handling I was taught. You mean the things that have been illeagal without a class 3 license since the 1930s?

Yes, this includes such things as machine pistols, which are not assault rifles by dint of not being rifles, but assault rifle is a stupid term anyway.
Tell me, what does "assault rifle" meant to you? Because, to Clinton and those who rely on people like you to be ignorant, it means "guns that look like military rifles but aren't", yet to those in the know, it has a very specific definition.

Re:In archaic terms...

[Torvaun]

A quick check of wikipedia says that an assault rifle is defined as a selective fire gun with muzzle energies between that of a light machine gun and that of a submachine gun. Of course, that's not what the ban is. The ban is like making certain cars illegal depending on how many hood ornaments they have, which is a really stupid idea.

Re:In archaic terms...

[zippthorne]

Given this, I think that it is completely fair to ban assault rifles.

I would argue that the current wording does guarantee the right to possess nukes, so long as you can actually afford to purchase said nukes, or the equipment to produce them. At least insofar as your facilities and stored materials don't impact your neighbors' health.

You should keep in mind that 18th century arms also included field artillery, swivel guns, shore bombardment cannons, flares, fragmentation grenades, rockets and bombs. And which, due to the prohibition (which technically still exists as far as I can read) on congress maintaining a standing army, would have to have been held by private citizens.

The bill of rights is not an enumeration of your rights. It is an enumeration of a specific few rights considered important enough to explicitly prohibit the government from infringing. If the government is not given explicit authority to do something by the constitution, you're supposed to assume that it does not have that authority.

You might say that it shouldn't guarantee that right, in which case, feel free to propose and promote a constitutional amendment altering the second amendment guarantee. Depending on your wording, you'd probably get a fair bit of support, possibly even the NRA would support you depending on the nature of the proposed restrictions.

But this is the problem with the anti-gun nuts: for whatever reason, they don't really believe their agenda is a popular one, so they work through corrupt or intellectually shallow politicians and activist judges to subvert the constitution and undermine the will of the people.

Re:In archaic terms...

[LuYu]

It is difficult to decide where to draw the line as to which weapons to allow and forbid.

Since when does the Federal Government have the authority to make this decision at all? The point of the Second Amendment is that the States should decide. If people in one state want to ban weapons, fine. That is their prerogative. If the people of another state want to have no restrictions, that is also fine. This is why it is called the United States (countries), and not "America" (which happens to be a continent).

I cannot see how the Constitution allows the Federal Government any say in this whatsoever.

Re:In archaic terms...

[LuYu]

I think the parent was talking about the threat of force, not its actual use. Further, political assassinations are totally useless. The government is like the mafia. If one person vacates his position, there are a hundred more criminals in line to take his place. And finally, such events give the government the power of sympathy and makes martyrs out of crooked politicians. Really, everything is to the advantage of the government if such an action is taken.

The States having independent militaries, on the other hand, would have an entirely different effect as no one wants to see another civil war. The threat is certainly more important than the the use of force.

Re:In archaic terms...

[uncqual]

....I think that it is completely fair to ban assault rifles......

An assault rifle is somewhat of a gray area, but I think that such a weapon is generally not thought of as a defensive weapon. Hence the name "assault".So forbidding assault weapons is likely outside of the "bear-ing" limit. A good hunting rifle, shotgun or a pistol of some sort would make a reasonable defensive weapon against criminals. Not to start a discussion about the "purpose" of the Second Amendment, but there's little question that a rational (albeit possibly incorrect) interpretation is that the Founders were, among other things, concerned about insuring that the populace could defend itself against Federal power gone astray. I believe there's more evidence for this position than that the Second Amendment was meant largely to provide the ability for citizens to defend themselves against other ordinary individual citizens acting on their own greed rather than the collective greed of the Federal government. (The notion that a citizen would not be allowed to possess sufficient arms to defend themselves against a criminal was probably so far out of the question that it didn't cross their minds -- and certainly it was not an issue to be addressed at the Federal level.)

In the context of that interpretation, if an American citizen is defending themselves against Federal troops commanded by a rogue Administration striving to grab power via military force, they need weapons that are effective against those used by the Federal troops in localized battles. Clearly if the military has full auto guns or even selective fire assault weapons, only the similar level will do to defend against that force. I think most nukes however fall outside that level... To use a nuke in a "neighborhood defense" situation would be senseless - sure, you'd kill the attacking force, but you'd also destroy your neighborhood, your neighbors, and yourself.

From a practical standpoint, a rogue U.S. Administration that has to take power by fighting house-to-house against well armed American citizens will quickly fail. As each individual soldier looks into the eyes of yet another person who could easily be their brother, sister, mother, father, son, or daughter (and, occasionally, will actually be!) and kill them in cold blood to avoid their own demise, the soldiers will eventually (probably within a few hours of the Federal power grab) turn their weapons on their commanders and defect (along with their equipment) from the dark side. On the other hand, if the populace is unable to defend themselves, lesser and nonlethal (and hence much more palatable to individual soldiers/police) force (simple commands, stun grenades, Tasers etc) can be used to gain compliance. The latter approach would (I hope) fail eventually, but could continue for days/weeks/months/years with some combat situations ending up being very deadly (some groups of citizens who have a strong visceral desire to be free will die trying to avoid subjugation even if the odds are high they will fail and die trying).

The Founders didn't anticipate the power of modern weapons any more than they anticipated the power and potential of abuse of the Internet in the free speech arena. IMHO, they may have made abuse of these mediums (powerful weapons and the Internet) punishable by very stiff penalties, but they would not have banned or regulated them heavily in areas that would have hobbled their use under the Second or First Amendments.

Re:In archaic terms...

[sumdumass]

I'm know the nuclear arms arguement is a clasic strawman but I have been thinking about this.

If the second amendment was meant to be an effective means of allowing the citizens to protect themselves from an oppressive government, the nuclear arms wouldn't be part of the picture. It would take a dumb mother fucker to think they could detonate a nuclear missile on his own people to retain control and power. It just wouldn't happen.

So at the risk of sounding like I am attempting to interpret the constitution for my own interests, I think the concept behind the second amendment would be to keep arms that the government would use against you. This would rule out nukes and most biological warfare that couldn't be easily obtained.

What is your take on something like that?

Re:In archaic terms...

[Brickwall]

There are those that thought the Bill of Rights was unnecessary and redundant since the government did not have the power to infringe on the people's rights, that power was not granted and could not be granted. Enumerating rights as protected was viewed as dangerous since rights not enumerated could be viewed as unprotected.

I kind of thought that was the purpose of the Ninth and Tenth Amendments. Amendment IX The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. Amendment X The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.

Re:In archaic terms...

[Anonymous Coward]

You really think most of the armed forces are going to unload their stuff on their own people, because they're ordered to do so? History says yes!

Re:In archaic terms...

[msuarezalvarez]

His point is that a line has to be drawn. He notes that no one sanely argues that the US constitution secures the citizen right to bear nuclear arms. Therefore, he concludes, the right secured by the constitution is not absolute and, in consequence, there are both arms which citizens can bear and arms which they cannot. Now, the constitution does not specify where the line is to be drawn, so, as the GP clearly concluded, a line needs to be drawn.

His logic is perfect.

Re:In archaic terms...

[rohan972]

The written purpose of the 2nd amendment is the maintenence of the militia. On what basis do you argue that a militia should not have access to assault rifles?

It's not about "legitimate sporting purpose", self defense,criminals or anything else other than the arming of a citizen's military force. Naturally, if you are part of a well armed militia, self defense etc become issues that do not require debate.

Re:In archaic terms...

[DMCBOSTON]

A phrase found in the Constitution and Bill of Rights is "Congress shall make no law..." Simple. It means that the government shall make no law regarding the subject at hand. The Founding Fathers weren't dummies. They knew it was easier to deal with absolute rights (like freedom of the press) than to give Congress ways to find clever loopholes.

notebook? papers?

[theRhinoceros]

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.

The Fourth

[Anonymous Coward]

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*.

Re:The Fourth

[TheKidWho]

Ehrrm, you NEVER have to give them your code. As that would be incriminating yourself.

Let them try to hack it instead.

Re:The Fourth

[Actually, I do RTFA]

Let them try to hack it instead.

And then sue them under the DMCA for breaking the DRM-encryption on your copyrighted, poor-quality-recording rants about government intrusion!

Re:The Fourth

[crankyspice]

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*.

The fourth only protects against 'unreasonable' searches without a warrant. A search incident to a lawful arrest has been, for almost a century, been (per SCOTUS interpretation) reasonable, and requires no warrant nor consent. Weeks v. United States, 232 U.S. 383, 392 (1914): "the right on the part of the Government, always recognized under English and American law, to search the person of the accused when legally arrested to discover and seize the fruits or evidences of crime. This right has been uniformly maintained in many cases."

Or, "The right without a search warrant contemporaneously to search persons lawfully arrested while committing crime and to search the place where the arrest is made in order to find and seize things connected with the crime as its fruits or as the means by which it was committed, as well as weapons and other things to effect an escape from custody, is not to be doubted." Agnello v. United States, 269 U.S. 20, 30 (1925)

United States v. Robinson, 414 U.S. 218. 235 (1973): A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification. It is the fact of the lawful arrest which establishes the authority to search, and we hold that in the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a `reasonable' search under that Amendment."

This is pretty old stuff, every first-year law student gets this in Constitutional Criminal Procedure. I'm not aware of any SCOTUS case law directly on point, but lower courts have been applying SILA ("Search Incident to a Lawful Arrest") to electronic devices for decades, e.g., United States v. Lynch, 908 F.Supp. 284, 287 (D.V.I. 1995): "the search and retrieval of the telephone numbers from [the defendant's] pager was justified as being incident to a valid arrest, even though [the defendant] had a reasonable expectation of privacy in the contents of the pager." (Cited with approval in U.S. v. BROOKES, Crim. No. 2004-0154 (V.I. 2005).) Cellphones and pagers have been held to be akin to wallets and address books which, if on a suspect's person or within the sphere of his immediate control at the time of arrest, are fair game.

So, not exactly sure how this is news; it's certainly nothing new.

Re:The Fourth

[TheKidWho]

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.

Re:The Fourth

[rtb61]

The point to consider is that they can search you person discover the device, and whilst you remain under arrest hold that device and then seek a search warrant to access the data on the device or in the event that you are released and a search warrant is not gained for accessing the private data on the device immediately return the device to you.

As the device is controlled during your detention and you are no longer able to destroy evidence on the device or the digital data could hardly be called a weapon, there hardly seems any legal scope for accessing the private data on the device. Rather than allowing an individual to peruse your personal data for their own deviant gratification or allowing the confiscation of an expensive electronic device as a prima facie penalty for failing to show the proper grovelling respect (the cost of extended loss of use of the device, possibly years!?, hence the cost of replacement as well as the loss of access to the data and software contained within the device) and an ego based demonstration of power.

The whole idea of warrants is specifically an attempt to prevent abuses of power, harassment of individuals and the corrupt planting of evidence. In the case of digital 'evidence' the ability to plant false evidence is dangerously easy and virtually impossible to defend against, so there is no excuse not to ensure as much public oversight over that process as possible. Much the same for when you are questioned, that your lawyer be present perhaps the same should carry through to any electronic personal data storage device as it is very much a personal extension of an individuals own thoughts and private opinions.

Re:The Fourth

[Oktober Sunset]

but this law would let them do it without a court order, in fact without any good reason at all.

TrueCrypt

[mwilliamson]

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.

Re:TrueCrypt

[vux984]

The judge will just order you to provide the police with the pass phrase. Refuse and you'll be jailed for contempt of court until to hand it over.

If we've got a judge making that order we're pretty safe from having it searched automatically as part of an arrest for something unrelated. They've got you before a judge!! That would be entirely reasonable.

What is needed is a dual pass phrase encryption application. Enter the legit code and you get access to your data. Enter an alternate and it opens a volume with 'manufactured' information.

Providing the 'alternate', if they figured it out, would amount to contempt of court and compound your problems. (*IF* they figured it out... but if the main selling feature of the encryption tool you are using is this 'dual pass phrase' stuff... you can bet they'll be sucpicious if they're even slightly savvy.)

What is REALLY needed are laws that make the contents of your laptop protected, so that you can't be compelled to hand them over at the drop of a hat. So they need a damned good reason along with a warrant before it happens... and even -then- there should be limitations on what they are allowed to use as evidence when they find something if its not what they are warranted to look for.

Re:TrueCrypt

[uniquename72]

What is needed is a dual pass phrase encryption application. You mean like Truecrypt has?

Re:TrueCrypt

[BigMeanBear]

The Fifth Amendment says that I can not be compelled by police or a court to surrender my passwords.

The law only get's in the way of the undereducated

[Lumpy]

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 .

iPhone plug?

[NickHydroxide]

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.

Nothing to do with the iPhone

[jcorno]

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.

Re:Nothing to do with the iPhone

[Telvin_3d]

I think credibility has to be judged on the merits of the article, not the example they used. No matter the device in question, the issue they are raising is one that should be raised and that deserves a degree of discussion. Now, should they try and promote this by using the most obscure examples they can find? Would the points they raise be any more (or less) valid if they had used a 5 year old device that no one had ever heard of for their example?

redundant obvious response: my little black book

[jdogalt]

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.

I must say

[Nysem]

I miss the days when privacy meant something.

"He notes, 'Obviously, the framers of the Fourth Amendment could not have conceived of a handheld technological device like the iPhone..."

What part of that makes it acceptable to completely and utterly violate somebody's privacy like that? Last time I checked you don't search anything be it an iPhone or a school locker unless you suspect something illegal is involved. I don't have an iPhone but this is all the more reason I'm not getting one.

Re:I must say

[QCompson]

What part of that makes it acceptable to completely and utterly violate somebody's privacy like that? Cops use the all encompassing, "in my experience as a police officer, drug distributors and users often use electronic devices and computers to store information related to their drug buying/dealing." The police always seize computers when they raid houses for drugs.

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.

That is one organized...

[anlprb]

That is one organized crack dealer who is scheduling his shipments via his iPhone. Last time I bought crack, I didn't even get a customer service number, let alone online tracking. My how things have changed.

Steve Jobs wins

[Dan East]

So the noun iPhone is now being used to refer to any cellphone, pda or other hybrid mobile device? Steve Jobs has already won.

Dan East

Hyperbolic

[MaceyHW]

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.

Call me when this happens

[Artraze]

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.

Re:Call me when this happens

[Angry Black Man]

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.

Intention of searches incident to arrest

[TheGoodSteven]

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?

Re:Intention of searches incident to arrest

[Actually, I do RTFA]

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?

Nope

[I]t was argued to the court that a search of the person of the defendant arrested for a traffic offense, which discovered heroin in a crumpled cigarette package, was impermissible, inasmuch as there could have been no destructible evidence relating to the offense for which he was arrested and no weapon could have been concealed in the cigarette package. The Court rejected this argument...

United States v. Robinson, 414 U.S. 218, 235 (1973)

IANAL, but I read stuff

Not (exactly) random searches

[ricebowl]

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.

Yes and No

[Actually, I do RTFA]

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?

If they think they "may contain evidence that you can destroy" and they have arrested you, it looks like the Supreme Court has ruled yes.

What if these papers and information are protected by attorney or medical privilege?

I imagine you would inform them of that when you discover they intend to read/confiscate it. And then it is completely inadmissable in court. And they could not look.

(As a corallary, I bet it is illegal to lie about that to an officer in this context.)

What if these are my (HIPAA-protected) health records?

I'd imagine those would be treated the same as medical privlidged papers.

IANAL, but I did read the article linked to in the summary on searches incident to arrest.

whoah, easy there man!

[deft]

it's the price we pay for being safe from T E R R O R I S M .

When you type terrorism all freaky and forboding like that, it makes me want to vote for bush. He's not even running. wth?

Not the Harvard prof who defended O.J.

[Riktov]

That's Alan M. Dershowitz.

The author of the paper is one Adam M. Gershowitz. Not Alan as stated in the summary.

(Nor is it Adam Horovitz the Beastie Boy.)

iPhone meets the Fourth Ammendment

[Chris Burke]

iPhone: [walking down the street] Doo do doo... nice night for a stroll, listenin' to some tunes...
4th Ammendment: [walking other way] Hello there, citizen!
iPhone: Oh hi! Who are you? Haven't seen you around here much.
4th: I'm the 4th Ammendment to the U.S. Constitution! I guarantee your right to be free from searches without a court-issued warrant.
iPhone: Ah, that's neat. I don't pay much attention to that politics stuff...
4th: Yeah, I know it's tough, that's why I'm out on the streets, trying to remind people of their civil liber-
[Suddenly NSA and DoJ leap out from an alley and attack 4th]
NSA: Rar!
DoJ: C'mere, bitch!
4th: Aaaaaaah!
iPhone: Dude! What the fuck?!
4th: Oh god, oh god! They're raping me! They're raping me right here on the street!
iPhone: Oh shit! Dude do you need help? [stepping forward] Cut it out you assholes!
NSA: [pulls out a switchblade]
DoJ: Back off, fucker, if you don't want to be next!
4th: Please help me! Please- Ah not there!
iPhone: Whoa dudes... Chill, seriously...
4th: [incoherent screaming]
iPhone: [backing away] Ah, yeah... I gotta go... check out the sale at Whole Foods or something... [starts running]
NSA: [shouting at iPhone] You didn't see shit!
4th: [moaning and sobbing]

[fin]

without probable cause

[Schraegstrichpunkt]

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

Isn't probably cause or a warrant required before you are arrested in the first place?

Security in Our Papers and Effects

[Doc Ruby]

the framers of the Fourth Amendment could not have conceived of a handheld technological device like the iPhone

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.

Re:Security in Our Papers and Effects

[Chris Burke]

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.

Unlike others, I RTFA'ed

[NeutronCowboy]

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.

Next time I go to the US...

[Anonymous Coward]

Next time I go to the US... OK, put me on your sh* list ..... after all probably I do not want to really go anymore. But if I do,
probably I just take a hmmm. Calculator? Analogue watch?

I am sorry, but I know people who got their PDA searched, and interrogated at the border. I know people who were asked to log-in and show their contact list on their laptop computer.

I am sorry, but I do not feel like entering the US anymore with any electronic device, because I know they have the right to search, confiscate, burn and destroy anything I carry without a warrant, without asking.

I am a legit geek, and I want my laptop and phone with me on a 1. holiday, 2. business trip to anywhere. Coming from there, even being 100 percent legit I just do not want to enter the US, because I do not want to explain my contacts in my phone book, and do not want to lose my laptop, tablet, or whatever else.

What's next? My GPS? And if I have a waypoint in the middle east or south america I am a terrosirs, bomb maker, or communist suspect?
I was thinking a dive trip to Miami, but if they anal-probe my pda I better just choose something else....

I think I just let my visa expire, and maybe renew it when the US returns to its common sense. You think I am rebelling alone? Most people I know would pahy a couple extra hundred $ to go an other route to make sure they do not lose a laptop or PDA while entering the US. And they are not criminals, just IT people. Hell, the US is killing itself slowly but surely.

Re:Encrypt

[Lumpy]

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.

Tagging Beta - Jews?

[mastershake_phd]

handheld, privacy, ifascism, ipr0n, and jews? Am I missing something?

iPhone?

[uhlume]

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.

the intent is obvious

[samantha]

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.

have you morons actually read the 4th amendment?

[DragonTHC]

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

I think the Iphone and other such devices fall under both paper (meaning data) and effects (meaning the physical device).

I think it's pretty clear! Papers and effects are covered.

Reading the 4th & 2nd Amendments

[Diagoras of Melos]

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).

repeat after me...

[EngMedic]

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. . . ."