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Calif. Appeals Court Approves Cell Phone Searches
Local ID10T writes with this excerpt from The Blaze: "In a case explicitly decided to set a precedent, the California Appellate court has determined
police officers can rifle through your cellphone during a traffic violation stop. ... Florida and Georgia are among the states that give no protection to a phone during a search. In particular, Florida law treats a smartphone as a 'container' for the purposes of a search, similar to say a cardboard box open on the passenger seat, despite the thousands of personal emails, contacts, and photos a phone can carry stretching back years. But after initially striking down cell phone snooping, California has now joined the list of states that allow cops to go through your phone without a warrant." Interesting additional commentary, too, from UCSD law professor Shaun Martin.
Hopefully this law didn't try to rewrite The 5th while giving the officer the ability to throw you into jail if you fail to comply.
They buy special devices that plug in to the manufacturer specific port and rip the data that way. They don't always use the screen and keypad but rather swipe all the data at once and review it in the privacy of their office while laughing at your photos.
Better idea would be to hollow out part of the phone without stopping it from working and rewire the port to discharge a capacitor that hopefully ruins their machine.
Don't give them permission to search your car.
As a result of the Court's ruling, the legislature overruled the court by passing a law that provides privacy protection for mobile devices.
See http://www.californiality.com/2011/09/california-mobile-device-privacy-law.html
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iPad or laptop?
What if your device contains attorney-client privileged material or other sensitive documents?
Florida law treats a smartphone as a 'container' for the purposes of a search, similar to say a cardboard box open on the passenger seat
I don't know Floridian law, but does the box have to be open? If that's the case, a pass-coded cellphone is technically a sealed box.
Every time I start to have faith in humanity, I ruin it by driving to work between 7 and 8 am.
They get a very sanitized version of the phone, you get to keep your privacy - all while complying with their order.
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Here's a link to the actual opinion: http://www.thenewspaper.com/rlc/docs/2011/ca-phonesearch.pdf
They don't manually go through it. There are devices they plug into the usb/charger port if it's a smartphone and will download everything to the device. Doesn't matter if you have a password. More info here:
http://www.cellebrite.com/forensic-products/forensic-products.html?loc=seg
Of course they'll keep the info, store it in their databases forever. Goodbye privacy.
Dead Kennedys for Emperor. That is all.
If the police must act on specific grounds, then there's a defensible (and correspondingly, attackable) justification for the action. If the police are simply given an additional, flexible and wide-ranging power (perusing your cellphone) to use whenever a completely irrelevant situation (a traffic stop) arises, then there's a massive opportunity for abuse. You can probably guess whose cellphone pics are more likely to get snooped through on a traffic stop.
No kidding!!! What do you say at this point?
Of course with the Legislature passing the mobile phone privacy law, this discussion is all academic, but I don't think so. The Fifth lets you refuse to *testify* against yourself. It does not say anything about letting you refuse to give the government the key to a locked box that they want to legally search (which would be the 18th century analogue to a password-protected phone). Especially in light of the court finding (wrongly, IMO) that phones don't count as far as illegal search and seizure goes, it's highly unlikely that they would find that the 5th means anything at all, much less that it means you can withhold the key.
"I disagree with you" does not equal "flamebait."
Nothing stopping you from getting a pay as you go phone filled with messages about how much you love police rifling through your contacts and emails. All contacts are for dunkin' donuts in a 50 mile radius. Switch real phone off, turn honeypot phone on. Jobs a good 'un.
If you get busted over here (small-ish country in yurp, I'm sure the neighbours aren't any better), then you can count on the police searching your home and whatever else of yours they get their grubby mitts on just in case, for nashonal shecurity, or some such other reason. Partly in response to all this anti-terrorism pressurizing of governments a certain country has shared with the world. So yeah. You go and clean up the mess at home and then change the tune you're pressuring the rest of the world with back to liberty and the pursuit of happiness for all, not just for haliburton contractors with american citizenship, please.
So where do we get a cell phone with real encryption?
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"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."
If this doesn't cover a cell phone carried on your person, it doesn't cover anything. We should really be more careful when we choose judges. We need to make sure they all know how to read.
There's a difference between "such a device exists" and "They use a device". I believe those devices are possibly in use in Michigan which the ACLU is suing to find out more about, not in Florida.
On the iPhone, if you can pull the data out with iFunBox, then the forensic tools can.
Similar with Android -- ADB access or access to the SD card will allow the phone to be dumped.
Yes but the Blackberry's a useless locked-in POS.
"When information is power, privacy is freedom" - Jah-Wren Ryel
For now, all you can do is get a Blackberry. Which is such a big functionality tradeoff that it's almost like replacing your phone with a river rock.
"When information is power, privacy is freedom" - Jah-Wren Ryel
Hopefully this law didn't try to rewrite The 5th while giving the officer the ability to throw you into jail if you fail to comply.
5th Amendment to our *Federal* constitution. The 5th Amendment might prevent an FBI agent from going through your cell phone with a warrent. State and City Police might have completely different rules which is the whole reason there are three states which allow this sort of thing. Don't like it? Help support someone in your local politics who promises to change it!
So where do we get a cell phone with real encryption?
More to the point, why have some of us allowed ourselves to be duped into any expectation of privacy or security with a device that can be swiped from your pocket and scraped for data in moments?
Probably just about any of us could secure data on our laptop machines in such a way as to make unauthorised recovery at least challenging. But (for the moment, at least) a phone is, well, pretty much just a phone with a few doodads on it to give us something to do other than playing minesweeper. The pervasiveness of mobile handsets and applications has way outstripped their rudimentary little safeguards, and anyone who entrusts anything important to such a device most likely deserves a salutary shock.
The federal constitution trumps all else. Even state laws. The constitution puts a limit on the powers of the government. In this case, the 4th Amendment basically states that the government can NOT search you, your house, papers, or effects with out cause and that warrants must be granted by Judges. Over the years there have been a number of court cases that have refined the specifics of the amendment, allowing officers to perform weapon searches, etc...
These laws will >hopefully be overturned if they ever get infront of the Supreme Court as it seems like a direct violation of the 4th Amendment.
-Rick
"Most people in the U.S. wouldn't know they live in a tyrannical state if it walked up and grabbed their junk." - MyFirs
They buy special devices that plug in to the manufacturer specific port and rip the data that way. They don't always use the screen and keypad but rather swipe all the data at once and review it in the privacy of their office while laughing at your photos.
Better idea would be to hollow out part of the phone without stopping it from working and rewire the port to discharge a capacitor that hopefully ruins their machine.
Too much risk of the authorities charging you with something related to destroying police/government property to bother with a booby-trap.
Most cellphone "slurping" units being used by LEO's use, to my knowledge, the mini-USB port to connect. Simply use a method to disconnect the data line that's not obvious from a brief external inspection. If you're not worried about using the mini-USB for data transfers, simply cut the copper land or wire to the data pin. Maybe someone clever could devise a secret switch.
They can't "slurp" what they can't connect to.
If you're questioned as to why their magic box doesn't work, simply claim it worked fine before they hooked up their box to your phone, did you break my phone, Officer?
Most likely they'll toss your phone back in your car, and you'll suddenly be sitting there all alone with maybe a warning, free to be on your way. Last thing they like to do is a bunch of paperwork, especially over something like a stupid phone in a traffic stop.
Strat
Progressivism (aka US 'Liberalism'): Ideas so good they need a police/surveillance-state to enforce.
There is no evidence to support that the ratifiers of the 14th amendment desired it to affect the bill of rights.
1. You have evidence to the contrary? Which, even if you did is moot because,
2. It makes no difference what their desire was. What matters is what was written and passed into law.
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Phones are not 'containers', a term which was invented by the supreme court to let cops look inside boxes next to people they were arresting. We can debate if that is reasonable or not, but the entire point of allowed container searches was there might be a weapon there.
Cell phones cannot have weapons in them. Well, actually, they might, and if a cop wants to inspect the physical casing of a cell phone, I have no objection. But they cannot have weapons in their data, the data cannot pose any sort of risk to the police.
They are, quite blatantly, as blatant as anything can be without being made of wood, what the constitution means by 'papers'.
Oh, and because they are, in fact, papers, there's something people have missed: What if a cell phone has privileged communication with an attorney on it? Mine does. (Admittedly, it's a civil suit, and would be of little interest of a cop...but they are still not allowed to see it.) Or privileged medical information on it?
And here's a fun question: What, exactly, is the legal difference between a cell phone and a tablet? (If someone says 'can make calls', I must point to Skype and 3G plans.) What's the legal difference between a tablet and a laptop?
Cell phones are document stores. They contain papers. The police cannot read those papers without a warrant.
There might be a few parts of the phone that don't count as documents, like incoming and outgoing call logs. That was the backdoor that allowed police to originally search, because that used to be basically all phones did.
But it's not any more, and as the logs on the phone can be altered and deleted, and the cell phone companies have much better records, so I don't see the point of allowing that. The only thing police should be able to demand they get from a cell phone is the phone number of it. And possible the SIM number or whatever, if they need that. (I.e., they only get to get enough info to uniquely identify it on the telephone network.)
If corporations are people, aren't stockholders guilty of slavery?
They had luggage when they wrote the constitution.
Even in a car, searching luggage requires a warrant.
Simple solution, carry your cell phone in a locked briefcase (if you don't lock it the cops will just lie and say it was open).
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What you have stated is a fallacy, because the Constitution is derived from common law.
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The reason it was towed was concern that it might be stolen if left by the side of the road. Yeah, right. I am sure that the "concern" was totally unrelated to the fact that towing the car created a situation under which it could be searched.
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As has been pointed out previously in this thread, this has indeed already been overturned. It's interesting to note the dates in both articles, however. The article detailing the overturning of the Cali Supreme Court decision is dated September 21...while the OP's article is dated Oct. 4th. And the OP's article is from where? The Blaze. Which is? The Glenn Beck-founded "news" site. Either it's plain shoddy journalism on their part, or disingenuous and deliberately incitant. Ahh, Glenn Beck. Why let facts and reality interfere with the agenda?
Even if that were true, there's considerable evidence that the framers of the Constitution wanted ambiguities in the text to be resolved through the institutions created under the Constitution -- including, but not limited to, the federal judiciary -- in light of specific circumstances, rather than being limited to specific inquiry as to what the authors and ratifiers thought at the time of ratification.
But your claim isn't true; there's considerable evidence that providing guarantees againt State violations of some of the protections existing in the Bill of Rights was an integral part of the intent of the proposers and ratifiers of the 14th Amendment.
One argument made in the House of Representatives in favor of (and by the primary author of) what was adopted and proposed as the Privileges and Immunities Clause of the 14th Amendment was this:
That is, the specific problem that the Federal Constitution failed to protect against State violations of protections in the Bill of Rights like the protection against cruel and unusual punishments was part of the problem that the 14th Amendment, and specifically the Privileges and Immunities Clause, was directly designed to address.
(It's true that the case law of the 14th Amendment has drawn incorporation more from the Due Process Clause of the 14th Amendment, so certainly one can credibly argue, and many have, that the cases are technically wrong in drawing incorporation from this point, but its simply indefensible to claim that there is no evidence that incorporation was intended with the adoption of the 14th Amendment.)
This issue is about searching your phone during a traffic stop. A normal traffic stop does not involve being searched. A traffic violation is not "probable cause" for a search.
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LUKS Manager for Android lets you create encrypted volumes, similar to TrueCrypt. TextSecure encrypts incoming text messages. There is not yet a way to do full disk encryption that I know of.
Not a sentence!
What is "reasonable" is defined in the amendment. It is: probable cause, supported by oath or affirmation, along with the issuance of a warrant. It isn't "because the courts say so."
What the courts "say" is 100% bullshit. They don't legally have ANY right to define reasonable in this context no matter how much they claim otherwise.
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I have only hangup in considering cellphones equivalent to a cardboard box: is it possible to delete data from a cellphone in the same way one can remove a letter, photograph, or business card from a cardboard box.
If so, then I have no objection to considering the two equivalent. There should be the same level of legal protection on both.
If not, then they are not equivalent. If you can't delete data from your cellphone, then, for many people, it is equivalent to having the information chained to your leg: getting rid of it without crippling yourself is practically impossible.
There is not yet a way to do full disk encryption that I know of.
How about WhisperCore?
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It strikes me that during the first two centuries of this country's existence the people's representatives tried to guarantee and assure the people's liberty and for the last few decades they've been doing their best to undo all that fine work.
Also, the enabling act of most states requires the government be republican in form and consistent with the principles of the Constitution and Declaration or Independence..