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...

[bckrispi]

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

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...

[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...

[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...

[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...

[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...

[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.

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

[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

[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.

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.

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.

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.

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.

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

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]

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.

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.

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.