The Window To Your Life

I’ve somewhat praised Governor Moonbeam for vetoing a lot of stupid Democratic ideas. But in the rush to pass several hundred new laws at the end of session, I think he erred badly by (a) signing a bill banning open carry; and (b) vetoing this one:

This week California Gov. Jerry Brown vetoed a bill that would have required police to obtain a warrant before searching an arrestee’s mobile phone. The bill, which was unanimously approved by the state Assembly and passed the state Senate by a vote of 32 to 4, was introduced in response to People v. Diaz, a January decision in which the California Supreme Court said examining a drug suspect’s text messages 90 minutes after taking him into custody is a valid “search incident to arrest.”

This may no sound like much, but keep in mind what a modern cell phone contains: GPS information on places you’ve been, text messages, e-mail, call records, pictures, video and Angry Birds. In fact, it’s possible, through the wonder of cloud computing, that a cop could use a cell phone to access your tablet, laptop and home computer. I don’t see how anyone could reach any conclusion other than that free access to a cellphone is free access to your “persons, houses, papers, and effects”.

Considering the huge amount of laws out there, the complete lack of care with which our politicians pass those laws — especially laws regarding technology, I can guarantee that your computers contain evidence of some law you have deliberately or inadvertently broken. Are you sure all those girls in /home/games/checkers/saved_games/march/2009/stalemate are of legal age? Nothing illegally downloaded, is there? Videotape a cop, have him arrest you on a bogus obstruction charge and suddenly you might be facing a felony count for having a ripped copy of Weekend at Bernie’s 2.

We are getting more and more of this from state and federal government. Crimes rates are the lowest they have been in half a century, but our politicians continue to eat away at our civil liberties to make sure we’re not doing something wrong.

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  1. InsipiD

    I don’t see how anyone could reach any conclusion other than that free access to a cellphone is free access to your “persons, houses, papers, and effects”.

    I’d rather have a proper court rule to this effect than have a law passed that confirms the law while at the same time weakening it by suggesting it doesn’t apply already.

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  2. Hal_10000 *

    In principle, yeah. In practice, the Courts have shown an astounding ignorance about how technology works. There are a number of judges who don’t even have computers, let alone smartphones.

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  3. Seattle Outcast

    Hell, most of the people I work with don’t have smartphones, I work at a very high-tech company. Old geezer engineers are spending their cash on other toys I guess.

    I’ll get one in a couple years when a lot of bugs have been worked out , 4G is more common, and the price has dropped 75%.

    And I won’t be getting an iPhone…

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  4. Hal_10000 *

    The other things about deferring o the Courts is that it is the obligation of all three branches of goverment to protect our liberty. If one fails, the others have to step in. IT’s why I want Congress to change pot laws to recognize states’ rights: because the Courts won’t.

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  5. richtaylor365

    I’m still reading some of the attached links on the Reason article you provided, but so far I’m not prepared to say this is a bad decision, here’s why:

    From your article;

    On the contrary, Fourth Amendment scholar Orin Kerr told Wired, “it is very difficult for courts to decide Fourth Amendment cases involving developing technologies like cellphones.”

    And grizzly old legislators that know zero about the law and the 4th Amendment are? Sorry, I would prefer courts/judges/lawyers to decide legal matters, even if they get it wrong and it gets bumped up to a higher level for review, at least they start from a background of expertise that no legislator has.

    And since the two main justifications for allowing police to search arrestees without a warrant are to find weapons and to prevent the destruction of evidence, neither of which applied in Diaz, the legislature’s reading of the law seems more plausible as well as more protective of civil liberties.

    Nope, they conveniently (by design?) left out the third exception, “Fruits of the crime”, the police can do warrantless searches incidental to a lawful arrest to look for evidence or fruits of the crime.

    This may no sound like much, but keep in mind what a modern cell phone contains: GPS information on places you’ve been, text messages, e-mail, call records, pictures, video and Angry Birds.


    People v. Diaz
    only mentioned text messages as searchable, nothing more. I admit I did not read the entire pdf on it but there is a big difference between text messages and all that other stuff you mentioned.

    Say Diaz had no phone but had a small notebook in his pocket. The notebook is searchable (on his person/incidental to a lawful arrest/and could possibly contain evidence involving a crime (drug dealing), I bet there would have never been any challenge to this search, it is done hundreds of times each day, yet, because the notebook was electronic, throwing the bugaboo technology factor in, and now we have a challenge, interesting.

    For the record, I expect searches involving stuff where case law has not already ruled on the legality of such to be vociferously challenged, I am well aware of the free pass cops use of ,”Well, we have always done it this way in the past”, so every contingency must be ruled on by its particulars, but for this case, I don’t see (not yet anyway) what the difference is between a written down pen/ paper message and a text message on a phone.

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