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Police Can Search Cell Phones Without Warrants

Posted by Soulskill on from the just-like-opening-a-wallet dept.

Hugh Pickens writes "The California Supreme Court has ruled 5 to 2 to allow police to search arrestees' cell phones without a warrant, saying defendants lose their privacy rights for any items they're carrying when taken into custody. Under US Supreme Court precedents, 'this loss of privacy allows police not only to seize anything of importance they find on the arrestee's body... but also to open and examine what they find,' the state court said. The dissenting justices said those rulings shouldn't be extended to modern cell phones that can store huge amounts of data and that the decision allows police 'to rummage at leisure through the wealth of personal and business information that can be carried on a mobile phone or handheld computer merely because the device was taken from an arrestee's person.' Interestingly enough, the Ohio Supreme Court reached an opposite conclusion in a December 2009 ruling that police had violated drug defendants' rights by searching their cell phones after their arrests. The Ohio-California split could prompt the US Supreme Court to take up the issue, says California Deputy Attorney General Victoria Wilson, who represented the prosecution in the case."

78 of 438 comments (clear)

  1. Computer that happens to be a phone by Culture20 · · Score: 4, Funny

    Glad I use an iPhone and it's really a computer.

    1. Re:Computer that happens to be a phone by Thing+1 · · Score: 5, Funny

      "At first they came for the druggies, but I" -- oh wait.

      --
      I feel fantastic, and I'm still alive.
    2. Re:Computer that happens to be a phone by garcia · · Score: 2, Interesting

      Glad I use an iPhone. My first call will be to my wife to remotely wipe the phone and then call a lawyer.

    3. Re:Computer that happens to be a phone by PopeRatzo · · Score: 2

      My first call will be to my wife to remotely wipe the phone and then call a lawyer.

      If it's not a jailbroken iPhone, how do you know the "wipe" is really a wipe?

      --
      You are welcome on my lawn.
    4. Re:Computer that happens to be a phone by Amouth · · Score: 2

      Well using the remote wipe via exchange does just that.

      unless you are going sarcasm because it is a walled garden, if so you for got your tags.

      --
      '...if only "Jumping to a Conclusion" was an event in the Olympics.'
    5. Re:Computer that happens to be a phone by partofthepuzzle · · Score: 5, Informative

      I'm glad to see that it seems that haven't been arrested.

      If you had, you would find out that in almost every circumstance, you will NOT be allowed to make a call using your own phone. There may be exceptions if it's a very minor situation or the rare compassionate cop, but I would NOT count on it. Your phone WILL be confiscated and inventoried, along with all of your other belongings, and you will NOT get to see it again at all, until you are released.

      BTW, this has implications beyond the possibility of your phone being searched. How many important phone numbers do you have memorized these days? Maybe 2 or 3 "important" numbers? What if those folks don't answer? In most urban holding cells (where you'll spend up to 24 hrs when you're first arrested, before going to other areas of the jail), there's a phone that everyone can use to make as many free calls as you would like. The catch is that the calls are usually limited to the city or county limits. If the numbers you have memorized are outside the calling area you are SOL. Oh yeah, they always have the bail bond numbers posted by the phone, so you could get out in a few hours on your own, IF you have a few thousand bucks to spare (most cities have drastically increased minimum bail amounts in recent years and it's very common to find even minor, non-violent, misdemeanor crimes with bail in the $10-$30k territory = $1-$3k for bond, which is $ you will never see again).

      My advice: memorize a dozen or so cell phone and landline numbers that you will want to call in any emergency (believe it or not, there are some jail phone systems where you can only leave messages on landlines!). If you are stopped in your vehicle, try to make a call ASAP, before you may be asked to get out of your car and before there is any chance of being arrested and the cops taking your phone. Write important numbers on your hand or arm if needed. If you're taken into custody, you will most likely have to change into jail clothes and you'll lose access to any paper you had in your pocket, etc.

      Last, if you're thinking that as a 1000% law abiding citizen, that none of this could happen to you, think again and bear in mind that guilt is NOT criteria that determines one's vulnerability to arrest and the even the most innocent citizen could possibly find themselves in a situation where they are arrested.

    6. Re:Computer that happens to be a phone by TheCarp · · Score: 2

      lol Quite apt though....

      Using drug cases as an excuse to pry further and further into peoples personal lives is... pretty typical. When the war is on human appetite, the fight must naturally extend to all places where people feed those appetites.

      Now, if they can search an arrestee's phone, and that phone is connected to the internet, does that mean, they can.... search the internet too?!!

      -Steve

      --
      "I opened my eyes, and everything went dark again"
    7. Re:Computer that happens to be a phone by conspirator57 · · Score: 4, Interesting

      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.

      But hey, the democrats think it's just a piece of paper and the republicans think it's a suicide pact.

      i think that long term, our society's abandonment of the constitution is the real suicide pact.

      --
      "If still these truths be held to be
      Self evident."
      -Edna St. Vincent Millay
    8. Re:Computer that happens to be a phone by conspirator57 · · Score: 2

      cool story, bro.

      might want to take off those naivety inducing rose-colored glasses.

      probable cause is what the arresting officer says it is. and if you live in e.g. Massachusetts you can be arrested for "wiretapping" for recording your surroundings to document that their stated probable cause is bogus.

      --
      "If still these truths be held to be
      Self evident."
      -Edna St. Vincent Millay
    9. Re:Computer that happens to be a phone by virg_mattes · · Score: 4, Interesting

      It's a nice thought, but most officers will drop the phone into a "safe bag" when they take it, which is like a static shielding bag, and will prevent remote contact with the phone. Therefore, after it's been confiscated it's unlikely (possible, but I wouldn't want to gamble my freedom on the odds) that a remote wipe will work, since the phone will be in the bag until they take it out to search it, and they'll do that in an evidence room that's also a Faraday cage, to prevent exactly this sort of thing. Remote wipe is great for clearing data in case of theft, but the police are generally wise to the evidence-destroying implications.

      Virg

    10. Re:Computer that happens to be a phone by RsG · · Score: 4, Insightful

      What really strikes me as profoundly stupid about the whole "warrantless" business is the fact that warrants are not hard to get. If someone's arrested for possession (which is the sort of thing TFA is referring to) it should be trivially easy to get a warrant from a judge to search the individuals home, car, cell, computer, whatever. Making it warrantless means that the cops can go "fishing" for evidence of a crime when the bring someone in on a trivial charge, like traffic violations.

      Put another way, if the cops actually have good reasons for pulling data off a cell, the existing legal framework will let them do that easily. And if they don't have good enough reasons to go before a judge, why on earth should they be allowed to proceed?

      --
      Erotic is when you use a feather. Exotic is when you use the whole chicken.
    11. Re:Computer that happens to be a phone by Duradin · · Score: 4, Insightful

      For recent examples I blame 24 and Law and Order: SVU for convincing the masses that extraordinary ticking time bomb and [insert trendy 'vulnerable' group here] in imminent peril from evil mastermind [murderer|rapist|deviant] scenarios are very ordinary. People think this so to get [re-]elected politicians show how tough on crime they are by cutting the 'red tape' that 'protects' the criminals.

    12. Re:Computer that happens to be a phone by Dishevel · · Score: 2
      The real problem with the US constitution you see is that it makes things too complicated when the government needs to take away our rights.

      Which is why we need to get rid of both the Republicans and Democrats. Neither of them have any respect for the constitution or our personal rights. The Democrats want me to pay for abortions and other peoples health care, by force. The Republicans want grope me at the airport and put me in prison for not thinking like them. Fuck them both.

      --
      Why is it so hard to only have politicians for a few years, then have them go away?
    13. Re:Computer that happens to be a phone by enjerth · · Score: 4, Insightful

      Probable cause? Like arresting you for resisting arrest?

      You can be taken into custody and held without charge for what, up to 48 hours? And there are enough laws out there that they could probably arrest you at any time for a number of things. So they can seize and search your phone, laptop, and any other possessions you have at any time, all without a warrant, should they decide that you're worthy of investigation. All they have to do is come up with some reason to arrest you. Like maybe for sneezing too loud in public.

    14. Re:Computer that happens to be a phone by chimpo13 · · Score: 3, Insightful

      I remember that post of yours. You aren't operating on all levels if you find it reasonable to flash a gun at a retail store employee to force a sale at your convenience. I would think that in any state, even Texas, if you tried that you'd end up talking to the cops and you'd lose your permit to carry. Now I'll remember that commodore64_love is a bit kooky and I'm sure there's a few other people who remember that post. It's not just a single AC.

      --
      riding round the world on an old motorcycle
    15. Re:Computer that happens to be a phone by Dyolf+Knip · · Score: 2

      And in the meantime they can seize your house, your car, pretty much anything you own, by declaring it to be criminally gained. And they don't have to provide a shred of evidence of that.

      --
      Dyolf Knip
    16. Re:Computer that happens to be a phone by Anonymous Coward · · Score: 2, Insightful

      Be polite, but remember that every question is also an effort to gain a confession, no matter how friendly the cop appears. It's not worth risking self-incrimination on the off chance that you're being stopped by someone who actually gives a shit about whatever extenuating circumstances you're going through. The usual line is "Sorry, I have no choice but to [issue a ticket|arrest you|impound your vehicle|whatever]," which is BS of course... everyone has a choice. The law imposes penalties for actions, yes, but officers have much discretion as to whether the threshold has been met for a given penalty, as well as the ability to triage if there's multiple events occurring simultaneously (and who's to say there's not?). Most cops will take another tick toward their quota 9 times out of 9. (The non-existent quota, of course, which works much the same as the "unlimited" data plan you have, with vaguely defined soft limits and targeting of outliers.) Then there's the fact that not writing you a ticket means making yet another (granted, dangerous) traffic stop instead of sleeping in the patrol car or playing Flight Control on their own phones, or whatever other BS they need to do to get through another day of their miserable lives.

      It wouldn't be so insulting if traffic stops were about anything other than revenue and control of the population. Fifteen percent of the population is stopped in an average year. FIFTEEN PERCENT. That's 100% within a 7 year period, excluding repeat offenders. The reason outstanding warrants are almost never served directly -- except for very serious crimes -- is that cops KNOW they'll pull you over sooner or later, because they pull EVERYONE over sooner or later. Same goes for AWOL soldiers BTW -- the military will check your home of record, and if you're not there they'll just drop it and wait for you to get pulled over someday. That's not to say that warrants shouldn't be served by any means, but the dragnet that is the traffic stop has almost nothing to do with the fact that you were a danger to public safety by having a tail light out, and everything to do with the convenience of revenue gathering and periodically detaining each and every citizen.

      So when you're stopped, protect yourself. Be polite, but refuse to answer questions other than those to establish your identity, refuse to have your vehicle searched whether or not there is any contraband in the vehicle, and ask if you're free to go at each step of the process. As the GP stated, the fact that you're not a criminal will never guarantee that you won't be treated like one.

    17. Re:Computer that happens to be a phone by sumdumass · · Score: 2

      Except for the article says Detainment not arrest. You can be detained without ever being arrested. In fact, you can be walking down the street moments after a crime happened and be detained simply because you are in the area. That's not enough probably cause to arrest you, but it's enough to question you.

      Just ask anyone who has been detained for driving while black through a rich neighborhood. Forget the fact that he's the Pizza deliver guy and can't find the house which is why he changed directions on the same road more then once.

    18. Re:Computer that happens to be a phone by enjerth · · Score: 2

      I assure you, you are doing something wrong. There are enough laws to make us all criminals.

      The bottom line is, no matter how innocent you think you are, if they decide that they don't like you they will find something to charge you with.

      Even a criminal defense attorney will retain the services of another attorney when faced with criminal charges.

  2. Passwords by HaloZero · · Score: 5, Interesting

    What if my device is password protected? Can I be compelled to hand over the password? Because I won't.

    If I cannot be compelled to hand over encryption keys for other forms of media, I'm not giving up a password to my mobile device, either.

    At the same time, if they elect to seize and search my backpack, which is also locked, they have the option of breaking the lock to gain access to the contents. But is that legal? At that point, you're also destroying my property in the process.

    Are these 'law enforcement officials' permitted to install software on devices in the course of conducting a 'search'?

    Sticky.

    --
    Informatus Technologicus
    1. Re:Passwords by joh · · Score: 5, Insightful

      What if my device is password protected? Can I be compelled to hand over the password? Because I won't.
       

      What do they need the password for? They don't want to use the thing, they want the data. As long as you don't have your data encrypted having the device is more than enough for them, no password needed.

    2. Re:Passwords by ArsenneLupin · · Score: 2

      What do they need the password for? They don't want to use the thing, they want the data. As long as you don't have your data encrypted having the device is more than enough for them, no password needed.

      Phones are getting more and more powerful. For some devices, such as the Nokia N900, it is indeed within reach to encrypt critical information. However, this obviously needs to be balanced against convenience. If you've set it up such that you need to re-enter the password on its tiny keyboard for each access (sending an SMS to one of your contacts in your address book, connecting to a Wifi, ...) it's way inconvenient. If, on the other hand, you set it up to cache the encryption password, it will be useless against this threat model: police won't certainly leave you the opportunity to press a panic button to flush the password from memory.

    3. Re:Passwords by mcgrew · · Score: 2

      At the same time, if they elect to seize and search my backpack, which is also locked, they have the option of breaking the lock to gain access to the contents. But is that legal?

      Yep, once you're arrested.

      I was concerned when I read the sensationalist headline, but they can only search your phone after you've been arrested. Not really much difference between a phone and a wallet, except for amount of data.

      I seriously doubt they could get away with installing software on your phone, even after they arrest you.

      --
      Free Martian Whores!
    4. Re:Passwords by Hoplite3 · · Score: 5, Insightful

      You can be compelled to hand over a password, but it requires a court order. However, in the case of having your phone taken when you are arrested, the police don't need your password to see your data if it is unencrypted. They'll just read the phone memory with another device.

      Generally, it's easy for the police to seize your property, relatively risk-free for them to damage it, and difficult for you to get it back in a timely fashion.

      You can thank the drug war.

      --
      Use the Firehose to mod down Second Life stories!
    5. Re:Passwords by fuzzyfuzzyfungus · · Score: 2

      Unlike computers, where encryption is a fairly recent addition(obviously, computers have been capable of encryption for longer than cell phones have existed; but the idea that somebody's home directory is going to be encrypted and unusable with any degree of frequency is quite new, and still probably isn't true most of the time), the cellphones that do security at all often do it fairly well.

      Particularly now that RIM has started selling cut-price blackberries to all and sundry to make up for their fall from grace in the elite-smartphone market, the odds that J. Scumbag is carrying a phone with encryption that was originally designed to appease Mr. Wallstreet's IT gestapo are quite good.

      If RIM is secretly backdoored, or the unlock code is visible in touchscreen fingerprint grease and/or worn physical keys, that won't help; but the only thing a random beat cop is going to be able to do about it is either intimidate/beat you into divulging the passcode, or just seize the device for 24 months while Forensics works through the backlog.

      Unless the suspect is a dumbass, or has a very downmarket phone, or is (gasp, shock, horror) actually just going about his business and hasn't considered having to secure his phone against cops, there are plenty of "you can beat the rap; but you can't beat the ride" style intimidation/harassment/de-facto perpetual seizure strategies; but actually getting any data could be pretty tricky...

    6. Re:Passwords by localman57 · · Score: 4, Insightful

      Even if it is backdoored, it probably isn't going to hurt you. If there is a secret backdoor in blackberries, AES encryption, etc, then the government isn't going to piss away that secret in order to bust some drug dealer or guy trading child porn. A backdoor like that would only be used in cases where you wanted to keep its existance secret, such a national security / espionage operations.

    7. Re:Passwords by commodore64_love · · Score: 4, Informative

      It's probably a bad idea to put a lot of information into a cellphone anyway. It's too easy to lose, or get pickpocketed. I'd rather keep my information secure in my house and only use the phone's storage sparingly (or not at all).

      BTW in the UK refusal to provide a password or passkey to decode an encrypted device is punishable with several years in jail. You have no right to remain silent in the UK, and it's beginning to look like the US is headed down the same path.

      --
      "I disapprove of what you say, but I will defend to the death your right to say it." - historian Evelyn Beatrice Hall
    8. Re:Passwords by Thing+1 · · Score: 2

      Well, since people can be arrested for the sole crime of "resisting arrest" (and they say cops are dumb!), I would say nobody's phone is safe on their person in CA.

      --
      I feel fantastic, and I'm still alive.
    9. Re:Passwords by JustOK · · Score: 3, Funny

      fuckyoucoppersyou'llnevergetmy42passwords!FUCKERs!!1! is a pretty strong password.

      --
      rewriting history since 2109
    10. Re:Passwords by fuzzyfuzzyfungus · · Score: 2

      Most likely true. A good backdoor is a terrible thing to waste.

      The only hypothetical concern(more likely with modestly high value suspects) would be backdoor + plausible cover story: ie. 1. Use backdoor to break system. 2. Tell media that we A)cleverly analyzed keyboard wear patterns with our science microscopes, all very technical... B)Built a customized password database based on an analysis of the subject's background and psychologically likely password sources. All very sophisticated, you understand...

      In any case, I'd expect that, in your basic stop and bother operation, the cop would either give up, intimidate the passphrase out of them, or just have the phone dumped in the forensics queue for its entire relevant lifespan(incidentally, would terminating your contract, or having your carrier provision a different phone, both of which would stop the flow of evidence to your phone, potentially qualify as evidence tampering?)

    11. Re:Passwords by PopeRatzo · · Score: 2

      but the only thing a random beat cop is going to be able to do about it is either intimidate/beat you into divulging the passcode

      Sometimes, the simplest ways are the most effective.

      Who wants to do all the paperwork?

      But all this talk about encrypted cell phones makes me realize just how pedestrian my life really is. The most interesting thing on my cell phone (to me) is the text from my wife saying that our daughter is staying over at a friend's tonight. Mostly, it's all "Pick up milk" or "Will be late". Maybe an occasional "I'll take the Bears and the points" which isn't going to get me in too much trouble, because here in Chicago the cop is probably taking the Bears and the points too, with the same bookie.

      --
      You are welcome on my lawn.
    12. Re:Passwords by Idarubicin · · Score: 3, Insightful

      But all this talk about encrypted cell phones makes me realize just how pedestrian my life really is. The most interesting thing on my cell phone (to me) is the text from my wife saying that our daughter is staying over at a friend's tonight. Mostly, it's all "Pick up milk" or "Will be late". Maybe an occasional "I'll take the Bears and the points" which isn't going to get me in too much trouble, because here in Chicago the cop is probably taking the Bears and the points too, with the same bookie.

      Actually, if the police wanted to nail you, your 'pedestrian' it's-only-a-little-bit-illegal gambling message is quite sufficient. It doesn't matter that the cop also gambles, just like it doesn't matter that he rolls through stop signs, or speeds on the highway, or sometimes smokes a joint with his buddies. Selective, infrequent enforcement of widely-committed acts is one of the most powerful tools the police have; it enables nearly arbitrary detention and harassment of virtually anyone, and those laws are unlikely to be a priority to ever come off the books because (through limited enforcement) they affect so few people directly. "But wait!", you say, "Surely I'm not a suspect, so I have nothing to worry about!" I wish you the best of luck playing those odds. It's a gamble that most of us would probably win -- but it works out breathtakingly badly for those who lose.

      --
      ~Idarubicin
    13. Re:Passwords by burris · · Score: 2

      Can you cite any cases? You're likely wrong because a password, like the combination to a safe, is not testimonial so the fifth amendment doesn't attach. No, making your passphrase a confession won't help.

    14. Re:Passwords by Jah-Wren+Ryel · · Score: 2

      Not what you expect

      --
      When information is power, privacy is freedom.
    15. Re:Passwords by guruevi · · Score: 3, Insightful

      The latest iDevices and Blackberries are encrypted by default (AES256) by the password and you can require stronger passwords than the 4-digits. That's how remote wipe works - it just sends a command which removes the encryption keys from the first block of memory in a few milliseconds, older devices took a few minutes/hours to completely wipe.

      --
      Custom electronics and digital signage for your business: www.evcircuits.com
    16. Re:Passwords by Idarubicin · · Score: 4, Insightful

      Because as bad as police can be, the alternative (not having them) is much worse.

      I'm not entirely sure how you get from my statement that police should not employ selective enforcement as a means to arbitrary powers of search and seizure to the conclusion that I believe the police should be disbanded.

      Perhaps you've been (mis)led to believe that it is impossible to criticize someone or something you generally endorse? Is unconditional support (or, conversely, absolute rejection) the only possible response to all the actions of police -- or of politicians, or lawyers, or judges, or reporters, or doctors, or priests? Surely we're capable of more nuanced analysis. "Either you're with us or you're against us!" is a cheap rhetorical trick that works well in televised soundbites, but has no place is rational debate.

      --
      ~Idarubicin
    17. Re:Passwords by Dyolf+Knip · · Score: 2

      And asset forfeiture laws were only meant to be used on millionaire druglords, and the PATRIOT Act was only meant to be used on scaaary terrorists, and torture was only meant to be used in the event of ticking time bombs, and...

      --
      Dyolf Knip
  3. Whole disk encryption and laptops by betterunixthanunix · · Score: 4, Insightful

    It won't be long before we see another court case concerning a defendant's right not to disclose his whole disk encryption passphrase.

    --
    Palm trees and 8
    1. Re:Whole disk encryption and laptops by rthille · · Score: 2

      "Awful Pity" doesn't begin to describe it... This quote: "officials say all seven dashboard cameras in the police cruisers coincidentally malfunctioned" is a couple pages in, but the whole article is worth reading.
      http://reason.com/archives/2010/12/07/the-war-on-cameras

      --
      Awesome furniture, accessories and cabinetry in Santa Rosa, CA: http://humanity-home.com/
  4. Come on, you know the song... by east+coast · · Score: 2

    I am governor Jerry Brown.
    My aura smiles
    and never frowns...

    --
    Dedicated Cthulhu Cultist since 4523 BC.
    1. Re:Come on, you know the song... by brainboyz · · Score: 2

      The point is the same people that put up with this kind of government also elected Moonbeam. I live in CA with an active plan to get out because the people are batshit insane.

  5. Get thee to the Supremes by YrWrstNtmr · · Score: 2

    If I'm arrested (not convicted, nor even charged), you don't get to perform a random search on my house without my consent. Why is a small, handheld electronic device any different?

    Just because it happens to be able to make phone calls?

    1. Re:Get thee to the Supremes by betterunixthanunix · · Score: 3

      The difference is that it happens to be on your person at the time of your arrest, and you lose the constitutional right to privacy when you are arrested. I suppose the original idea was that the police would be able to search your bag for weapons, or something like that, and it has (like so many others) been blown way out of proportion.

      --
      Palm trees and 8
    2. Re:Get thee to the Supremes by RobertM1968 · · Score: 5, Informative

      The difference is that it happens to be on your person at the time of your arrest, and you lose the constitutional right to privacy when you are arrested. I suppose the original idea was that the police would be able to search your bag for weapons, or something like that, and it has (like so many others) been blown way out of proportion.

      No, not entirely accurate.

      That's not the difference when it comes to smartphones (regular cell phones or semi-smart phones, yeah. If someone had my Android phone, they'd have full and free access to my gMail account, PayPal account, online photo albums, social networking accounts, address book (including the non phone portion such as Google Contacts) and so much more. And for many of my friends, it would also be unrestricted access to their home and/or work computer.

      Therein lies the problem with this ruling (unless the court decided to differentiate between "dumbphones" and "smartphones" - but as I've already read one linked article (albeit for a different /. post), I've already done my quota of RTFA and don't know if he made that distinction. I'll just assume he didn't, as I believe policy is here....

      THUS... this is a big problem and a big privacy violation for the millions of people who have smartphones.

      --
      StarTrekPhase2 - The Five Year Mission Continues!
    3. Re:Get thee to the Supremes by tophermeyer · · Score: 2

      That was exactly my concern. My question when I read the article was if "searching my phone" meant looking at just the data physically stored on my phone or looking at all the data my phone has access to. This wasn't really clarified in the article.

      The case in question focused on evidence that police collected by looking through a suspects stored text messages. So a responsible and limited application of this ruling would be to just limit such searches to data immediately available on the phone. But I suspect that police will not really respect the distinction.

    4. Re:Get thee to the Supremes by TheGratefulNet · · Score: 2

      maybe I do NOT want to carry or even own one of these 'privacy invitation boxes', then.

      the cellphone companies better stand up and FIGHT THIS or they may see people STOP carrying/buying these.

      this chilling effect surely made me think twice about putting my personal info on any kind of phone, smart or otherwise.

      to keep things private in today's world, you just have to NOT have them on any form of media that the 'law enforcement' (choke, cough) folks could get at.

      just like you have to have a child-proof home or pet-proof home, you now have to be 'leo invasion proof' when you're out and about.

      oh, and this has to be said, loudly:

      THIS IS NOT THE AMERICA I GREW UP IN.

      "don't take that with you! if the cops stop you, they think they have a right to take that!"

      my god ;(

      --

      --
      "It is now safe to switch off your computer."
    5. Re:Get thee to the Supremes by betterunixthanunix · · Score: 3, Interesting

      I did not say that I agreed with the ruling, I just gave my understanding of it. As far as I can tell, the judges are equating a cell phone with a pocket notebook -- the police can look through a pocket notebook, so why not cell phones and other electronics as well?

      As for the level of access your cell phone might give them...that is, frankly, irrelevant. First of all, the police cannot arrest you, and then use your housekeys to enter your home and perform a warrantless search of your house, so I doubt that a court would allow the police to use passwords stored on your smartphone to access computers in your home (from TFA, it appears that the case in question involved the police viewing a text message stored on the arrested person's phone). As for the data stored on online services, the police could search that without even informing you of the search, and may even be able to look through it without a warrant. There is no good distinguishing characteristic of "smart phones" that could be used to differentiate them from "dumb phones" -- all modern cell phones are mobile computers, some are just less restricted than others.

      --
      Palm trees and 8
    6. Re:Get thee to the Supremes by Kashgarinn · · Score: 2

      That's why it should be illegal to do it without a warrant.

      Police officers can and will use anything and everything they find whether it matters or not, and stuff that doesn't matter will probably get you sentenced.

      There's reasons why you shouldn't talk to police, and there's reasons why they shouldn't get free use of your phone. http://www.youtube.com/watch?v=6wXkI4t7nuc - it's long, but worth it.

    7. Re:Get thee to the Supremes by RobertM1968 · · Score: 3, Insightful

      ...So a responsible and limited application of this ruling would be to just limit such searches to data immediately available on the phone. But I suspect that police will not really respect the distinction.

      Even if they understand such a distinction (if one ever enters into ruling/precedent/law), nowadays, it's getting harder to differentiate between the two, with so many services and apps that blur the line between locally stored stuff and stuff stored in the cloud. Making the situation worse is that some of the normally locally stored stuff nowadays is often stored in the cloud (like my contacts).

      And even with the most sensible of laws/precedents/etc on this, I still would not trust the police to understand how to properly implement such searches in a way that does not violate such laws - not necessarily through bad intent on their part, but due to a lack of understanding of how the technology works, and how that relates to application of the law.

      --
      StarTrekPhase2 - The Five Year Mission Continues!
    8. Re:Get thee to the Supremes by RobertM1968 · · Score: 2

      Even if they understand such a distinction (if one ever enters into ruling/precedent/law), nowadays, it's getting harder to differentiate between the two, with so many services and apps that blur the line between locally stored stuff and stuff stored in the cloud. Making the situation worse is that some of the normally locally stored stuff nowadays is often stored in the cloud (like my contacts).

      In which case, your defense lawyer could try arguing that the police obtained the evidence illegally by connecting to a server they did not have a warrant to search.

      IF you can afford a defense lawyer who knows technology well enough, and IF you have a judge that would understand what the hell he's talking about. It's not like the DA is going to just roll over and say "Yeah, we made a mistake... he's right".

      Stop thinking we live in a perfect world.

      --
      StarTrekPhase2 - The Five Year Mission Continues!
    9. Re:Get thee to the Supremes by betterunixthanunix · · Score: 2

      NOT enough RAM, NOT enough CPU power, NOT a capable enough CPU

      Oh, well, since we are making distinctions based on computer power, I guess that PC from 1975 must not be a computer, since it has less computing resources and power than the microcontrollers I used in my undergrad courses. Hey, I know, I'll just say that because your laptop does not have as much computing power as the Cray sitting in my department's server room, your laptop is not a computer!

      Clearly, you have some misconceptions about what a computer is.

      --
      Palm trees and 8
    10. Re:Get thee to the Supremes by leonardluen · · Score: 2

      you haven't heard about this thing called facebook have you? this won't stop any significant number of people from carrying cellphones.

      The only people worried about privacy are IT nuts such as on this site (me included)

      cell phone companies really will just continue going on with business as normal.

    11. Re:Get thee to the Supremes by Andrew+Cady · · Score: 2

      The reality is that everybody plea bargains. The percentage of cases in which arguments even occur (let alone arguments about constitutionality) is such a tiny minority as to be negligible. Mostly, the accusation leads immediately to a plea bargain which is 1/100th of the maximum penalty (or more, but in proportion to the arrest record of the accused and without regard to the accusation) and is immediately accepted. Neither attorney needs to become familiar with the case.

    12. Re:Get thee to the Supremes by element-o.p. · · Score: 3, Insightful

      the cellphone companies better stand up and FIGHT THIS or they may see people STOP carrying/buying these.

      You mean the way people boycotted the telcos when NSA wiretapped the telephone networks with neither warrant nor probable cause*? Or perhaps you mean the way the mass majority of the flying public stopped flying when TSA got a little too draconian with airport searches**?

      Look, I agree with your sentiment -- I really do -- but I have become convinced that the erstwhile "Land of the Free and Home of the Brave" has become the Land of Blindly Following Authority. The USA has become so complacent recently that we, as a nation, will do whatever we are told without question until it's too late. You and I may already be looking around wondering just exactly how we got here, but that question is not even on Joe and Jane Sixpack's radar yet.

      * Yes, I boycotted AT&T in the wake of the NSA wiretapping. It's one reason I bought an Android (my local carriers, AFAIK, did not participate in the wiretapping) over an iPhone.

      ** Yes, I have boycotted flying as much as I possibly can -- I have elected not to take three personal trips this year, although there is one business flight that I will be taking (fortunately, neither the arrival nor departure airports have AIT scanners, or I would have told my boss he's going solo on this trip) -- and have encouraged my friends to do likewise. I have even got taken to task by one friend over my proselytizing (warning: shameless plug to my personal blog).

      --
      MCSE? No, sir...I don't do Windows. Yes, I am an idealist. What's your point?
  6. random searches for low-level crimes by digitaldc · · Score: 5, Funny

    Monday's ruling upheld the drug conviction of Gregory Diaz, arrested in April 2007 by Ventura County sheriff's deputies who said they had seen him taking part in a drug deal. An officer took a cell phone from Diaz's pocket, looked at the text message folder 90 minutes later, and found a message that linked Diaz to the sale, the court said. Diaz pleaded guilty, was placed on probation and appealed the search.

    WHEW! I feel SO much safer now that these low-level drug dealers are getting arrested and searched. I can now walk the streets safely knowing that these minor crimes are being prosecuted with probation sentences and bonus cell-phone searches.
    I think we should just randomly pull poor people over and search everything they have including their cell phones and hopefully we can find SOMETHING to bust these criminals with!

    --
    He who knows best knows how little he knows. - Thomas Jefferson
    1. Re:random searches for low-level crimes by commodore64_love · · Score: 3, Informative

      >>>Why don't they take this one step further and start scanning records from the wireless carrier?

      They can. Read the recently-passed Financial Reform bill which gives police new powers to obtain records/user logs from any US-ISP and not need a warrant for either the user, or the company. They can just walk-in, take what they want, and walk out. They also have this same power with banks.

      Thank you Democrat Congress of 2007-2010. Thank you Republicans for cooperating. Thank you for reaffirming that you are in fact ONE party, merely with different divisions.

      --
      "I disapprove of what you say, but I will defend to the death your right to say it." - historian Evelyn Beatrice Hall
    2. Re:random searches for low-level crimes by HeckRuler · · Score: 2

      uhhhh..... hate to break this to you, but they don't even need that anymore. Remember that thing with Mark Klein where he blew the whistle about the NSA doing wholesale wiretapping at AT&T? How all the big telcoms (except Qwest) were doing likewise? Remember that thing where Bush pushed to give them retroactive immunity? Remember the "compromise" that candidate Obama helped pass that gave them immunity only if they could get a hand-written permission directly from the president?

      Did you forget all of that bullshit? Cause I'm still kinda pissed about it.

      Now, the NSA aren't beat cops, and beat cops don't just phone up the NSA. So it really only comes into play when the government doesn't like you. Are you willing to accept that the laws only apply when it's convenient?

  7. Re:Online services by betterunixthanunix · · Score: 5, Insightful

    What if you store everything on the net?

    Then you forfeit your rights whether or not you are arrested.

    --
    Palm trees and 8
  8. So they can search the phone only? by whoda · · Score: 4, Interesting

    What happens when they use the phone to log into email and facebook accounts to retrieve information that is NOT in the phone?
    The police can't go enter your house just because they found the key in your pocket when you were arrested, they need a separate warrant to do that.

  9. Well, clearly if they didn't have anything to hide by Delusion_ · · Score: 2, Funny

    ...then they shouldn't have gotten arrested.

  10. Yet another reason to shun smartphones by Arancaytar · · Score: 2

    Of course, not owning a smartphone could become probably cause for a search warrant some day, since you must obviously have something to hide.

  11. They were jealous by houghi · · Score: 4, Insightful

    of what the TSA was able to do.

    You know some of the rights you still have? Enjoy them while they last. They WILL be taken away from you. And for those who tell you to contact your representatives or vote differently: those are the exact same people who voted for this.

    What is needed is actual use of the 2nd amendment and trow all politicians out and start over. The first time it worked. The government was disliked and was thrown out.

    I know it won't happen. Not until it is too late. It has happened before (also in other countries) and it will happen again (also in the USofA).

    --
    Don't fight for your country, if your country does not fight for you.
    1. Re:They were jealous by wickerprints · · Score: 2

      You might cut off a few of the Hydra's heads, but more will simply grow in their place. You're looking at the politicians as the source of the problem, when the real problem is systemic. It's the structure of government, and in particular, its relationship to corporate powers, that causes the erosion of civil liberties, not the individual actors themselves--who are merely doing what is in their own best interest. Armed revolution may bring down the actors, but failing to address the flaws in the system will bring no lasting improvement.

      Again, the real problem here is that corporations have become so powerful that politicians are no longer accountable to the people they govern. Instead, the system is twisted and abused to the effect of enrichment of the already wealthy elite at the expense of everyone else. This is how the Republicans can say with a straight face, "we want to cut government spending" while giving tax breaks to millionaires and billionaires. This is how the Democrats can pass health care legislation that mandates payment of premiums to private insurers, without guaranteeing that the rates will actually decrease. It is all about MONEY. Civil liberties? You lost those a long time ago when corporations decided the easiest way to make money was to manipulate the government into doing their dirty work for them.

  12. Obviously... by scorp1us · · Score: 3, Interesting

    The judges that ruled in favor were not considering that when a person is taken into custody searched and examined, it is not for personal information, rather the safety for the officers and the accountability of returning and cataloging the property.

    "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."

    Obviously an immediate arrest is slightly different, but I would say after the arrest they could get a warrant. It wouldn't be impossible and actually quite easy.

    --
    Slashdot's rate-of-post filter: Preventing you from posting too many great ideas at once.
    1. Re:Obviously... by scorp1us · · Score: 2

      Well physical items can provide a threat to the safety of officers. Information items do not.

      --
      Slashdot's rate-of-post filter: Preventing you from posting too many great ideas at once.
    2. Re:Obviously... by srmalloy · · Score: 3, Interesting

      The judges that ruled in favor were not considering that when a person is taken into custody searched and examined, it is not for personal information, rather the safety for the officers and the accountability of returning and cataloging the property

      Actually, I suspect that the reasoning was extended from an earlier precedent that allows the police to search your car if you are arrested while driving, which I find equally reprehensible, but has been in effect for enough years that, in the current 'presumed to be a terrorist until stripped, fondled, and proved otherwise' climate, it is unlikely to be overturned.

  13. "Stolen" phones by antifoidulus · · Score: 3, Interesting

    So what if the phone is stolen? Does the person who originally owned the phone get to be violated twice, once when the phone was stolen and again when the cops go through their personal data? Actually I could see the cops doing exactly this, basically hire someone to steal a suspect/famous person/chief's ex-wifes phone and then "arrest" the person and go through the "stolen" cell phone getting whatever incriminating evidence they damn well please without all the hassle of having to go get a warrant.

    --
    Monstar L
  14. Items we are carrying.. by inthealpine · · Score: 3, Interesting

    So if the police can search not only the phone in a physical sense, but check the data on the phone or even remote connections to data not on my phone, doesn't that mean other items that 'access property' could be seen the same way? I have keys to my car and house those items are 'on my person' and can access my car (information) and my house (more information). Setting a precedent like this is not far fetched, I mean look at the new health care law (like it or love it) the federal government says it can make every US citizen buy a product because the precedent comes from the federal governments ability to regulate trade between states.

    The constitution couldn't foresee computers or the internet (not that it needed to), but look at what the government does with individual rights when there is perceived uncertainty about peoples rights as it relates to data, we have none.
    This is a slippery slope.

    --
    "In God We Trust, All Others Pay Cash"
    1. Re:Items we are carrying.. by Arker · · Score: 2

      Umm, didn't the government long since force the populace to buy a product in order to operate a motor vehicle (which in more than a few parts of this country is a vital part of day-to-day life) by mandating car insurance?

      No, this is a myth I keep seeing repeated here. The federal government has never mandated automotive insurance.

      Some states have pseudo-mandatory provisions, but there are two HUGE differences here just at first glance.

      First as just stated these are state laws. If you dont understand the difference between a state or federal power please research 'federalism.' This is a huge difference.

      Second these provisions cover only damages that one may inflict on others - it is liability insurance required so that if you do damage to an innocent third party in the course of operating your vehicle, they can be compensated. Consistent with this rationale, no state actually requires even liability insurance be purchased - it is acceptable also to simply post a bond in the required amount.

      If the health mandate were comparable to the auto-insurance laws, then we would be looking at STATE laws mandating a policy that would pay medical expenses for OTHER people, only in the event that you somehow infect or injure them, or in the alternative that you post a bond in the amount required. And that just isnt even close.

      --
      =-=-=-=-=-=-=-=-=-=-=-=-=-=-
      Friends don't let friends enable ecmascript.
  15. Re:Well, clearly if they didn't have anything to h by paramour · · Score: 2

    Is that you, Eric Schmidt?

  16. Quick! Call McNulty and Freeman! by LandoCalrizzian · · Score: 2

    This is great news! So when does season 6 of The Wire start?

  17. Oblig xkcd by 2names · · Score: 3, Insightful

    http://xkcd.com/538/

    --
    "I'm just here to regulate funkiness."
  18. Will this change police practice? by laughingcoyote · · Score: 2

    So, the old police practice was to plant something that wasn't yours on you before arresting you.

    Will the new police practice be to plant things that are yours on you prior to an arrest? "Why yes, Your Honor, the defendant was carrying his laptop, dresser, closet, and kitchen sink in his pocket. Impressed the hell out of me, it did. I'd like to know where he got those pants."

    --
    To fight the war on terror, stop being afraid.
  19. Is this really any different than... by kellyb9 · · Score: 2

    ...searching you car if you're arrested for DUI. If its physically on your person after being arrested, I think its fair game. I know I'm in the minority on this, but I believe there is reasonable cause to search the items in your possession (wallet, cell phones, etc.) if you have already been arrested. Of course, I can already hear the throngs of anti-cop types that complain about cops arresting people just to get an opportunity to search your individual belongings. Not that I believe this happens as frequently as they'd have you believe, there’s an easy loophole here. If a judge determines that it wasn't an arrestable offense, then all evidence found after the fact be inadmissible in a court case against you.

    I could be wrong, but either way, this should force a supreme court ruling in the matter.

  20. Link by krou · · Score: 3, Informative

    A link to the actual ruling would have been nice: http://www.sfgate.com/ZKUI (PDF).

    --
    'If Christ had tweeted the sermon on the mount, it might have lasted until nightfall.' - John Perry Barlow
  21. IF THEN OKAY by JabberWokky · · Score: 2

    Can they open a sealed package or the mail in envelopes you haven't yet opened? If so, then it sounds like arrest allows a search of your person. I am not sure that is the case, however.

    I was under the impression that the only reason they could look at what you have on you is because they inventory your personal items during arrest, which places them in plain sight. A sealed envelope could not be opened. In the case of your smart phone, it is a mailbox with personal correspondence that is not in plain sight.

    To really put it out there, I'm not terribly concerned if your phone is set to show callers or display text messages, and as you're sitting in a cell, they happen to read an inbound text or see somebody calling in. Again, plain sight, and your cell phone is in the possession of the police. It's the same as if they glanced into the side window of your impounded car and read a note.

    To keep these things fair, however, the *internal* content of your phone is like the inside of your car's trunk... they should only be able to search your phone without consent in the same kinds of situations that they can search the trunk of your car without consent.

    --
    "$30 for the One True Ring. $10 each additional ring!" -- JRR "Bob" Tolkien
  22. This could be FUN! by Quila · · Score: 2

    I'm going to create an address book group called "Crack clients" and put the police chief's and mayor's home phone numbers in there, among others I don't like.

    Then at least if I ever get arrested I'll have some entertainment to show for it.

  23. That's not necessarily so bad, though by sean.peters · · Score: 3, Insightful

    ... because if they're in a Faraday cage while they are looking through your phone, they're only seeing what's on the phone, not trolling through your Exchange/MobileMe/Dropbox/Flickr/etc accounts stored in the "cloud". And if they take the phone out of the cage to look at that stuff, the remote wipe kicks in.