SCOTUS Protects Our Phones

A lot of breaking news today, so short posts while I prepare two big ones. The Court will be issuing its biggest decisions over the next week. Today they ruled against Aero (and much as I like the idea of Aero, I kind of see their point). But the most important decision they handed down was in Riley v. California. The Court decided — unanimously — that cops need a warrant to search your cell phone. The decision is here and it’s beautiful. They systematically destroy the government’s argument that cell phones must be searched immediately for police safety. They point out that taking a phone off the network can easily protect it from being “wiped”. And they close with this:

Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans “the privacies of life,” Boyd, supra, at 630. The fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought. Our answer to the question of what police must do before searching a cell phone seized incident to an arrest is accordingly simple — get a warrant.

They only way it could have been better if they’d said “get a fucking warrant”, words that should be inscribed on the doors of every police station, NSA office, CIA dungeon and FBI building in the country.

Comments are closed.

  1. Seattle Outcast

    How does this translate over to electronics such as tablet computers that do everything but make phone calls?

    Thumb up 0

  2. Hal_10000 *

    That’s a good question, SO. Border searches of laptops are legal right now. IF the Court follows through on their logic in this case — and it’s a very big if — this could be a huge corner turned on electronic privacy, a Miranda for the 21st century.

    IF

    Thumb up 2

  3. richtaylor365

    The decision was a no brainer, and consistent with evidenciary procedures already in place. When an expectation of privacy exists, closed containers/items not in plain sight, a warrant is required. Incidental to a lawful arrest does not apply unless there is concern that the arrestee will send out a harshly worded tweet while handcuffed.

    Naturally the cops wanted broader discretion, fishing expeditions are more lucrative when all fishing holes are available, warrants are based on articulated facts that would compel searching further,sometimes you just don’t have that and any warrant would be denied. They have always acted under the precept that is it better to ask for forgiveness than permission.

    Thumb up 2

  4. Miguelito

    If you’re worried about privacy and them searching a tablet or laptop, make sure you lick it with a password and, when possible, encrypt the drive. The major OSes now make encrypting your whole drive pretty easy. They can’t force you to type in your password, even if legally, you can just not do it long enough to require an actual judge get involved.

    Thumb up 2

  5. InsipiD

    How the same court could make this decision unanimously and then hand down some of the dogs that it has baffles me.

    Thumb up 5

  6. TxAg94

    Rich uses a phrase that I think may eventually come into plan, “expectation of privacy”. AT some point someone will ask how you have an expectation of privacy when you use your tablet or phone for endless selfies you post to Instagram, constant status updates to Facebook and a stream of descriptions of your every activity on Twitter. I have felt for years that using these services will eventually be equated with giving away your expectation of privacy. The cops will eventually, if they don’t already, use the strong-armed leverage they have with these companies to know in advance if there’s something incriminating then all they have to do is access your device to “find” it.

    Just a thought.

    Thumb up 0

  7. grady

    “AT some point someone will ask how you have an expectation of privacy when you use your tablet or phone for endless selfies you post to Instagram, constant status updates to Facebook and a stream of descriptions of your every activity on Twitter. I have felt for years that using these services will eventually be equated with giving away your expectation of privacy. ”

    What if you don’t use Facebook or Twitter? I would think that any fishing that law enforcement did on a persons Facebook page or Twitter account could be used against them and even as evidence towards obtaining a warrent for searching a laptop, tablet or phone. To say that some folks broadcast their lives to the world so nobody should expect privacy any longer is an incomplete line of logic.

    I can see why law enforcement would want an easier path to searches. That does not mean that we should allow it. Respecting privacy is supposed to be an American value

    Thumb up 2

  8. TxAg94

    I’m not saying it should apply to everyone regardless of whether you use social media or not. I’m just not going to be surprised when law enforcement stretches it that way.

    Thumb up 0

  9. richtaylor365

    I can see why law enforcement would want an easier path to searches. That does not mean that we should allow it. Respecting privacy is supposed to be an American value

    That is the focal point in a nutshell. The cops are not out to hurt you personally, their job is to catch bad guys, and searching everything, anywhere, with no limitations, willy-nilly makes that process easier.

    Aside from the First Amendment , the Fourth ranks second wrt case law defining it. What is unreasonable to some may seem reasonable to others,and over the years SCOTUS has been forced to take it case by case, much like the pornography yardstick of ‘”I know it when I see it”.

    The main hurdle (not the only) in defining it has been the expectation of privacy principle, is the item concealed (not in plain view) and is the item still in possession and under the control of the person carrying the item.

    Technology, ever expanding and becoming more sophisticated, will certainly add new twists, more discussion, but if the EOP principal is adhered to and not watered down or mitigated in anyway, a clear and consistent interpretation can remain.

    The cops can’t say that since that briefcase was not locked, no EOP existed (It has been tried), ditto with a backpack or any device carrying items or papers not in plain sight. Laptops, tablets, and phones can have the same level of protection, unless it is on with the information prominently displayed on the screen in plain sight, then it certainly is protected, case closed. Now the item can definitely be seized, removed from the owner so that no destruction of evidence can occur (one of the exigent circumstances spelled out is past court rulings) but once removed, no examination can take place without a warrant. Seems simple enough to me.

    Thumb up 1

  10. AlexInCT

    What if you don’t use Facebook or Twitter?

    I don’t for that specific reason. I have seen these social sites as problems of your own making for a long time. I drew the line at blog postings & comments, where you can at least remain disconnected and they have to do some work to spy on you.

    Thumb up 0

  11. AlexInCT

    That is the focal point in a nutshell. The cops are not out to hurt you personally, their job is to catch bad guys, and searching everything, anywhere, with no limitations, willy-nilly makes that process easier.

    Sounds like “Guilty till proven innocent” to me, then. Look I have no sympathy for bad guys, but we have already seen what a government that wants to squash its enemies, political or otherwise, can get away with in the age of Obama. I have no doubt that these people are looking for a way to turn the police against their enemy too. And when there are few, if any rules to curtail abuse, the shit gets bad.

    Maybe I am cynical and trust nothing realted to government, but I would rather err in that direction than find myself in the police state I now clearly see coming our way.

    Thumb up 3

  12. Seattle Outcast

    The general tendencies of all police is to become more and more like a military occupying force over time. They are whom the government has chosen to arm and authorized to fight crime with lethal force. All your rights just keep getting in the way, and the more they can throw them in the garbage while they go on a fishing expedition to find out what you’re guilty of the better.

    The modern advent of electronics has made their job unbelievably easier in many respects – you carry a GPS locator with you at all times, all of your associates are kept in a nice organizer for them to peruse, your communication history is extensively documented,and your text messages, bank records, prescription history, emails & voice mail are at their fingertips. All they need to do is charge the battery and start reading your life.

    Throw in “Stingray”, copter drones with cameras and audio recording devices, proliferation of military vehicles, swat teams, and their highly unconstitutional ability to enact asset forfeiture, and you have a large number of police departments that see the public is an enemy (the “war” on drugs) and a revenue source all rolled into one.

    Shooting your dog for the fuck of it and because it makes their dick hard while they throw in flashbang grenades at two AM and force everyone to lie on the floor naked for several hours while they ransack your home during a no-knock raid to serve a warrant based on pretty much nothing at all is starting to become the norm, not the exception, for police conduct.

    Thumb up 0

  13. richtaylor365

    Sounds like “Guilty till proven innocent” to me, then

    Did you miss this part?

    That does not mean that we should allow it. Respecting privacy is supposed to be an American value

    Maybe I am cynical and trust nothing realted to government, but I would rather err in that direction than find myself in the police state I now clearly see coming our way.

    Clearly, although I’m not sure why you thought that was necessary given that the post was about SCOTUS affirming Fourth Amendment protections concerning cell phone searches, a clear civil liberty win, and a smack down for police searching cell phones without a warrant. They got it right, that should be celebrated.

    Thumb up 1