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...

[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.

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.

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.

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]