At what point do you consider something “unreasonable”? Let’s say you’re pulled over while speeding—do the police have the right to search your mobile phone? And let’s say they do, and they find other verboten material on the phone? Should you also be on the hook for that, on top of your speeding ticket? It’s a pretty important debate, and it’s one that going on right now.
A judge in San Mateo county, in California, is in the midst of a just such a case. A man there went to buy 30 BlackBerry phones, something that piqued the curiosity of the store clerk. The clerk called the police, and he was arrested on charges of felony identity fraud. His iPhone was confiscated, too,
There’s a case going on right now in California where a man was arrested at a store for felony identity fraud. His phone was later confiscated and searched by police without a warrant. There’s really no law on the books that says police can or cannot search your phone during an arrest. Some people make the case, “Well, if the police can search you wallet, then why shouldn’t they be able to search your phone?” What if you password protect the phone—do the police have the right to crack the password?
I think the overall issue when you deal with the intersection of high technology (let’s just consider your mobile phone to be “high technology”) and law is that law simply hasn’t evolved to the point where it adequately takes technology into account. Let’s say there’s a law that covers wire taps on phone lines—does that cover mobile phones? What about Skype, or instant messages? IRC? Message boards? Can a police officer sit outside a café while running something ettercap, capture you planning some sort of bank heist, then arrest you on the spot?
I actually had this conversation with an Electronic Frontier Foundation senior staff attorney at CES. The gist is, yeah, law simply doesn’t take into account of all the complexities of today’s technology. Let’s say you’re brought to court by the one of the record labels, and you try to argue your case in front of a 70-year-old judge who wouldn’t know the difference between “upload” and “download” if his life were on the line. It’s going to take quite a while before people with more than a basic understanding of technology are sitting on courtroom benches.
If you can search a computer without a warrant then you should be able to search a smart phone. if you cant search a computer, then you cant search a phone.
allowing police to search a phone with no warrant is dangerous. at what point is a phone different then your net-book, which then becomes your laptop, then your desktop.
should be one rule of law for all of them. then again in the states im sure there are “terror” laws that would overturn any choice this judge makes.
“Let’s say there’s a law that covers wire taps on phone lines…”
ahahahahahahahahahahahhahahaha
Calling the ACLU…
This is too big an issue for them not to get involved.
Great response!
awesome
i think not, they need a warrant.
What part of
“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated”
is confusing to the executive branch of the California government. Sure if “effects” doesn’t cover my mobile phone, it shouldn’t be too hard to make the case that my email is the current analog of my “papers”. If I print my emails out from my BlackBerry and put them in a folder and carry those around with me can the police search through them without a warrant? Not without violating my 4th amendment rights.
Yeah seriously. David, you are totally right. This should not be an issue because of that statement. I don’t see anyone here that thinks they don’t need a warrant because it is just like a computer with how phones are these days.
The key to privacy is in that amendment, and why we have a right to “privacy”. All of your data, whether on you, a device you control, or on some server out in the cloud, are your “effects”. And you have a right to have those “effects” secure from unreasonable search. And search warrant or suspicion of immediate threat (concealed weapon, etc) has become the bar for reasonable.
This government and .gov fanboy induced confusion over technology is an attempt to advance a police state by clouding the arguments. Saying that computer “data” is something different from “papers” and “effects” is an outright lie.
The fact that this is even being “debated” blows my mind. Like the case in Pennsylvania where the school allegedly “spied” on students in their home, this shows how terribly eroded the 4th amendment has become.
Sounds like the cops searched the phone under
‘searched incident to an arrest’, which would allow them to search your person & vehicle for ‘fruits’ or evidence of the crime you were arrested for. It sounds like they went a bit too far by searching the data in the phone though, let me illustrate:
You get busted for selling dope, they can search your clothing & backpack (if you’re wearing one), but they cannot conduct a body cavity search without a warrant.
You get pulled over for speeding, then arrested because you have outstanding, mandatory appearance warrants. Your car is towed, and the police can conduct an inventory search incident to your arrest. Usually this is done to prevent you from coming back later claiming the cops stole the life savings in cash you had stashed in the bowling bag,
The level of allowable search will be determined by what you’ve been arrested for.
If you’re a wife beater, they’ll just inventory the contents.
If you’re a drug trafficker, they’ll probably pull every door panel off and search all of your bags. If you claim the large duffel bag in the trunk isn’t yours, they’ll just get a warrant to search that bag (and when they find it full of the finest buds from Humbolt county they’re going to arrest you for trafficking – DOH!!)
From an investigatory stand point, once the guy was in custody the cops really should have gotten a warrant to access the phone, same as they would for a computer. Having a judge sign off on a search warrant makes it harder for the defense attorney to get any evidence recovered in that search suppressed.
There could be an exigent circumstance exception, such as recovering evidence from the phone before it gets erased remotely (I have that app on my phone), Without all the facts of the case, it’s extremely difficult to be certain what is or is not allowed.
The problem is each state gets to make up their own laws or better yet interpret the law as they see how it suits them. If a person gets pulled over for a traffic infraction or speeding or commiting a crime, the people do not have the right to search the contents of a cell phone. I can see if the perp is someone that is of national interests or posses some security risk to the country. Then maybe it might be prudent to search the phone. Bottom line get a warrant and you should not have an issue. Also the fact is this is one case in lets say a couple billion people that have a cell phone.
I like the comment of the other gent. The boneheads that where able to access the camera of the laptop in some students home. That is bottom line an invasion of privacy and the administrator should be stripped of his job, and publicly flogged.
The states set up their own statutes, but certain procedures must follow federal guidelines, including search and seizure. Federal guidelines come from two sources: the Constitution and case law.
State guidelines must comply with both of these as a minimum measure, they cannot create search and seizure guidelines that are less strict.
On the topic of the remotely accessed webcams, flogging is too good for the parties who thought up and implemented that idea. Drawn, quartered, beheaded, THEN tortured – that would be a good start.
Although I like Pirate’s better. More intricate
:) publicly flogged I like that. He should be.
I do like Pirates’ as well. Dimented and Sad, but social….. Still, a good public flogging might make the administrator or anyone remotely thinking about this again, think twice.
awesome\