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Police Can Search Cell Phones Without Warrants
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."
Glad I use an iPhone and it's really a computer.
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
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
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
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
What if you store everything on the net?
Then you forfeit your rights whether or not you are arrested.
Palm trees and 8
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!
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.
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.
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.
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
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
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"
...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!
http://xkcd.com/538/
"I'm just here to regulate funkiness."
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
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?
... 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.