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posted by janrinok on Monday April 28 2014, @08:48PM   Printer-friendly
from the toss-of-a-coin dept.

The US Supreme Court is to rule on warrant-less searches of electronic devices. Law Enforcement (LE) want access, without warrants, to electronic devices of everybody arrested.

The US Supreme Court on Tuesday will take on the digital-age controversy over search and seizure of smart-phones and other devices. In two cases coming before the court, warrant-less searches of an electronic device not only provided the basis for criminal prosecutions but also strayed from the original reason for the arrests in question. President Barack Obama's administration and prosecutors from states across the country have lobbied for police officers to be able to search arrestees' gadgets - at or about the time of arrest - without a warrant. Such action, however, demands an examination of the Fourth Amendment's protection against "unreasonable searches and seizures." If nine out of 10 American adults own mobile phones and the devices have advanced to become virtual extensions of our personal and private lives, at what point does LE's access to their call logs, photos, and cloud-hosted data become "unreasonable" invasions of constitutionally protected privacy?

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  • (Score: 3, Insightful) by NeoNormal on Monday April 28 2014, @08:54PM

    by NeoNormal (2516) on Monday April 28 2014, @08:54PM (#37385)

    > at what point does LE's access to their call logs, photos, and cloud-hosted data
    > become "unreasonable" invasions of constitutionally protected privacy?

    IMO, there is never a a point that it is reasonable to search these devices W/O a warrant.

    • (Score: 3, Insightful) by DIMT on Monday April 28 2014, @09:53PM

      by DIMT (2043) on Monday April 28 2014, @09:53PM (#37410)

      I would not go quite so far as to say it is never reasonable. If there is a clear and immediate danger that might be prevented by looking at the phone, it is reasonable to search without receiving a warrant first, in my opinion. The way they have been doing it is a clear violation though, drunks and wife beaters do not pose an imminent threat to anyone once arrested, as the situation has already been contained.

      • (Score: 2) by Vanderhoth on Tuesday April 29 2014, @11:20AM

        by Vanderhoth (61) on Tuesday April 29 2014, @11:20AM (#37596)

        If there's a known clear and immediate danger, a warrant would be easy to obtain. If a warrant isn't required then everything will be a clear and immediate danger.

        --
        "Now we know", "And knowing is half the battle". -G.I. Joooooe
      • (Score: 1) by NeoNormal on Tuesday April 29 2014, @01:50PM

        by NeoNormal (2516) on Tuesday April 29 2014, @01:50PM (#37646)

        > If there is a clear and immediate danger that might be prevented by
        > looking at the phone, it is reasonable to search without receiving a
        > warrant first, in my opinion.

        In theory, that sounds fine... but it reminds me too much of "national security", a catchall for doing whatever, whenever. It's a slippery slope, IMO. If you want absolute safety and security in your daily life, you'll submit to living in a police state. Or, you can be exposed to some risk and insecurity to have the benefits of some level of personal freedom.

        • (Score: 2) by urza9814 on Tuesday April 29 2014, @10:32PM

          by urza9814 (3954) on Tuesday April 29 2014, @10:32PM (#37901) Journal

          It makes you uncomfortable but you can't argue against it precisely because that's what it's designed to do.

          It's an invented scenario. Never has and never will occur, so any discussion making that point is trying to mislead you. How, exactly, would they know they could prevent this imminent danger just by looking at the contents of your phone? To do that, they'd have to *already know what is on the phone*! And if they have enough evidence to know what's on there, they could easily get a warrant, but if they have that much evidence they probably have enough information that they don't need one anyway!

          This is the 'perpetual motion machine' of national security arguments. Completely bogus, but it keeps people arguing and distracted...

    • (Score: 0) by Anonymous Coward on Tuesday May 06 2014, @07:23AM

      by Anonymous Coward on Tuesday May 06 2014, @07:23AM (#40054)

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  • (Score: 5, Insightful) by BradTheGeek on Monday April 28 2014, @09:00PM

    by BradTheGeek (450) on Monday April 28 2014, @09:00PM (#37388)

    No matter what the court rules you should lock/encrypt your devices. That will prevent them from getting in easily. Even if warrantless device searches are deemed unconstitutional, there is nothing that prevents LE from gathering data from said device while you are in custody, then using it to fabricate a reason for a warrant.
    If you think that is far fetched. Consider this one possible situation. You are in custody, they look at your email or texts in the phone and see that you have conversed with a known drug dealer or other person of interest. From the content of that conversation, a line of questioning can be developed to hammer the second individual about you to garner more information. The second individual has no idea that the info came from the phone. They can be led to believe that you gave that information up on them. No warrant needed.

    Do not give them the chance. Lock your stuff. Period.

    • (Score: 0) by Anonymous Coward on Monday April 28 2014, @09:25PM

      by Anonymous Coward on Monday April 28 2014, @09:25PM (#37402)

      They don't even need to see if you talked to the drug dealer; they can tap you if you talked to somebody else who talked to the drug dealer (say, the local pizza delivery). And for all that the NSA and others claim that meta-data is harmless, just knowing that you made a call at 8:31pm and drug-dealer received a call at 8:31pm allows them to make assumptions even without knowing who you called or what you discussed.

      So yeah, do everything you can to keep your data private, regardless of the outcome of this case. Even if the Supreme Court rules in the people's favor, agencies have repeatedly been shown to ignore laws when it is inconvenient to them.

  • (Score: 3, Insightful) by Anonymous Coward on Monday April 28 2014, @09:02PM

    by Anonymous Coward on Monday April 28 2014, @09:02PM (#37389)

    I mean, how else is the cop gonna delete those videos you took of him beating some kid for looking at him funny?

  • (Score: 3, Insightful) by GeminiDomino on Monday April 28 2014, @09:03PM

    by GeminiDomino (661) on Monday April 28 2014, @09:03PM (#37390)

    Call it a lack of faith, but I'd lay down money that the outcome of this is a foregone conclusion...

    --
    "We've been attacked by the intelligent, educated segment of our culture"
    • (Score: 5, Funny) by Horse With Stripes on Monday April 28 2014, @09:27PM

      by Horse With Stripes (577) on Monday April 28 2014, @09:27PM (#37404)

      Call it a lack of faith, but I'd lay down money that the outcome of this is a foregone conclusion...

      Don't you mean a fourthgone conclusion?

    • (Score: 0) by AlHunt on Monday April 28 2014, @10:22PM

      by AlHunt (2529) on Monday April 28 2014, @10:22PM (#37418)

      The court will take it's cue from the white house, guaranteed.

    • (Score: 2) by MrGuy on Monday April 28 2014, @10:46PM

      by MrGuy (1007) on Monday April 28 2014, @10:46PM (#37427)

      I'll be honest - I'm pinning my hopes on Chief Justice Roberts on this one.

      He's the one that defied "party lines" to rule in favor of Obamacare as being constitutional. And he's one of the very few present justices IMO who has a history of actually thinking about the precedent he sets.

  • (Score: 5, Interesting) by SpallsHurgenson on Monday April 28 2014, @09:16PM

    by SpallsHurgenson (656) on Monday April 28 2014, @09:16PM (#37398)

    It used to be that this sort of news would fill me with hope; after all, the Supreme Court would look at the Constitution and obviously have to rule that warrantless searches were illegal. It is impossible to view the case any other way; just as the government can't snoop in our mail or personal effects without a warrant, so too should our electronic data be protected.

    But the pro-government trend of rulings over the past fifteen years - not to mention the government's tendency to ignore the law when it is inconvenient to them anyway - makes me view this upcoming ruling with dread. They will argue - as they have successfully done in the past - that since we have already "shared" this information with a third-party (namely the data carrier) it can hardly be considered private data anymore. I fear it will just further codify the government's self-proclaimed right to invade our lives and privacy in the name of domestic security. Worse, a pro-government ruling would then further entitle them to crack down on anything that prevents them from collecting this information (e.g, dark-nets, encryption). Plus, many people on the fence of this issue would start to side with the government once it has been declared legal (trust in authority is instinctive), further cementing the government's "right" to snoop through our data.

    It's why I almost wish for the entire issue to remain legally ambiguous. At least that way people will continue to see it as creepy and pester their representatives about the issue.

    Of course, that's just the cynical part of me talking. Who knows, this could be one of those rare cases that the Supreme Court actually sides with the average citizen, in which case it would be nice to have a hard and fast ruling that can be used against the various law-enforcement and intelligence agencies. It happened when the SCotUS rule in favor of photographing the cops, so it might happen again with this issue too.

    • (Score: 3, Insightful) by RamiK on Monday April 28 2014, @09:52PM

      by RamiK (1813) on Monday April 28 2014, @09:52PM (#37408)

      Ambiguity of the law solely serves the wealthy whom can afford prolonged trials; And their lawyers.
      Everyone else only stand to lose.

      --
      compiling...
    • (Score: 4, Insightful) by bob_super on Monday April 28 2014, @10:01PM

      by bob_super (1357) on Monday April 28 2014, @10:01PM (#37412)

      Yes, the third-party doctrine needs to go.

      It was kind of jutifyable when the post office had to somehow gather the list of your envelopes, and you could forget the return address to make it harder.
      Now that too many companies and agencies have all the metadata on everybody, the fourth amendment is incompatible with the third-party concept...

      I don't know how they're gonna decide that one. It's less a slam dunk than legalizing corruption.

    • (Score: 2) by mhajicek on Monday April 28 2014, @10:21PM

      by mhajicek (51) on Monday April 28 2014, @10:21PM (#37417)

      Why don't they just use the Interstate Commerce Clause like they do with other constitutional violations? Cell phones can cross state borders, therefore the government can do whatever they want with them.

      --
      The spacelike surfaces of time foliations can have a cusp at the surface of discontinuity. - P. Hajicek
      • (Score: 1, Informative) by Anonymous Coward on Monday April 28 2014, @10:35PM

        by Anonymous Coward on Monday April 28 2014, @10:35PM (#37421)

        Both of the cases before the court are regarding local police forces and not federal, as far as I can tell.

      • (Score: 2) by Reziac on Tuesday April 29 2014, @02:25AM

        by Reziac (2489) on Tuesday April 29 2014, @02:25AM (#37477) Homepage

        At the very least they can demonstrate that the data crosses state borders... that's a very nasty thought you had, and unfortunately I think you may be prophetic. :(

        --
        And there is no Alkibiades to come back and save us from ourselves.
    • (Score: 3, Insightful) by tathra on Tuesday April 29 2014, @02:43AM

      by tathra (3367) on Tuesday April 29 2014, @02:43AM (#37485)

      Who knows, this could be one of those rare cases that the Supreme Court actually sides with the average citizen

      i dont want the supreme court taking "sides" at all - i want them to impartially judge whether or not its constitutional, which is very clear to anyone who has ever read the thing. amendment 4 specifically says that this is not legal:

      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.

      general warrants and warrantless searches are not and can not ever be legal, period.

    • (Score: 2) by jelizondo on Tuesday April 29 2014, @04:23AM

      by jelizondo (653) Subscriber Badge on Tuesday April 29 2014, @04:23AM (#37513) Journal

      I share your worry, it probably will end in another setback for human rights, constitutionally protected rights, but not in vogue right now.

      I'm not a lawyer (yet!) but it seems that ISPs and other telecom providers should be treated as lawyers, doctors and others. Your doctor might have heard about your evil plans, but he is bound by confidentiality and can not give testimony against you.

      Forcing those third parties into confidentiality would solve the problem easily.(I think, I wish.)

    • (Score: 1) by http on Tuesday April 29 2014, @05:26AM

      by http (1920) on Tuesday April 29 2014, @05:26AM (#37528)

      Just because data is on my device doesn't mean it's been shared with anyone. If some LEO claims otherwise, why not ask the alleged carrier for the data?

      --
      I browse at -1 when I have mod points. It's unsettling.
  • (Score: 5, Insightful) by LookIntoTheFuture on Monday April 28 2014, @10:41PM

    by LookIntoTheFuture (462) on Monday April 28 2014, @10:41PM (#37425)
    It saddens me that this issue even needs to be questioned. It scares me that the president finds this practice a-ok. He taught constitutional law at the University of Chicago Law School for twelve years. How did that go? You have a right to privacy unless you are using modern devices to store your "papers and effects"?

    If you need to encrypt your devices to prevent government oppression, you have already lost. It will be a sad, sad day if the supreme court rules in favor of a police state.
    • (Score: 3, Insightful) by Reziac on Tuesday April 29 2014, @02:27AM

      by Reziac (2489) on Tuesday April 29 2014, @02:27AM (#37478) Homepage

      We're told that he taught Constitutional law (actually I gather he was a "visiting professor", but that's neither here nor there) but *what* did he teach about it? Did he teach how to uphold the Constitution under the law, or how to get around its pesky restrictions?? Are any of his classes recorded and accessible?

      --
      And there is no Alkibiades to come back and save us from ourselves.