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The iPhone Meets the Fourth Amendment
Posted by
Soulskill
on Thu Jan 24, 2008 08:29 PM
from the you-can-trust-us dept.
from the you-can-trust-us dept.
background image writes "According to Alan M Gershowitz, the doctrine of "search incident to arrest" may allow devices such as mobile phones, PDAs and laptops to be thoroughly searched without either probable cause or warrants [PDF download below abstract]. Incriminating evidence found in such searches may be used against you whether or not it is germane to the reason for the original arrest. He notes, 'Obviously, the framers of the Fourth Amendment could not have conceived of a handheld technological device like the iPhone, and courts have not yet been called upon to answer most of the difficult questions posed by such devices.' We've discussed similar search issues recently, as well as other privacy concerns related to modern technology.
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In archaic terms... (Score:5, Insightful)
Re:In archaic terms... (Score:5, Insightful)
However, to stay on topic, I must concur that this is so damn obvious - cells and laptops being the modern equivalent of papers - that this should have been addressed a long time ago.
Re:In archaic terms... (Score:5, Funny)
Re:In archaic terms... (Score:5, Informative)
Someone thought they should mod this funny, but the parent poster is correct.
Dig up an unabridged Oxford English Dictionary, and check out the definition for "regulated". There are examples dating back to the 1600's that use this term when referring to a militia, although they are now considered obsolete or archaic. In the context of a militia, the most appropriate synonym for "well-regulated" in the 17th and 18th centuries would be "effective" in the 21st century.
However, the first clause wasn't intended to limit the second clause. The Congressional Record shows that a "collective" interpretation was proposed in the Senate during the debate of the Bill of Rights by adding "for the common defense" (a phrase that was in at least one of the original 13 state constitutions). It was explicitly voted down.
Re:In archaic terms... (Score:5, Insightful)
But that begs the question, maintain a militia effective against what? The answer of course is that it is intended to allow for a militia effective against a government that oversteps it's bounds. However in odrer to be effective against the current government, not only would the gun control laws against fully automatic adn assault rifles have to be revoked, but people/militias would have to be legally be allowed to keep and practice with things like rocket propelled grenades. But as the much lauded rarely seen American spirit of Independence has vanished from our cultural mindset, so has the idea that we should maintain the ability to over throw our own government. In short, the more people actually believe the lie "The pen is mightier. than the sword" the more they have forgotten "Power flows from the barrel of a gun". The people who are spending 15% of every one of your paychecks [warresisters.org] on a war machine want you to go on thinking that rallies and op-ed pieces are as effective as "a well regulated militia". Do you really think that if millions of Americans were actually empowered to forcibly protect their rights, that we submit to The Patriot Act, Patriot Act II, etc?
Re:In archaic terms... (Score:5, Insightful)
Using that logic, it would also be completely fair to ban or severely censor the Internet, because it is far more effective than the 18th century printing press.
Re:In archaic terms... (Score:5, Insightful)
I would argue that the current wording does guarantee the right to possess nukes, so long as you can actually afford to purchase said nukes, or the equipment to produce them. At least insofar as your facilities and stored materials don't impact your neighbors' health.
You should keep in mind that 18th century arms also included field artillery, swivel guns, shore bombardment cannons, flares, fragmentation grenades, rockets and bombs. And which, due to the prohibition (which technically still exists as far as I can read) on congress maintaining a standing army, would have to have been held by private citizens.
The bill of rights is not an enumeration of your rights. It is an enumeration of a specific few rights considered important enough to explicitly prohibit the government from infringing. If the government is not given explicit authority to do something by the constitution, you're supposed to assume that it does not have that authority.
You might say that it shouldn't guarantee that right, in which case, feel free to propose and promote a constitutional amendment altering the second amendment guarantee. Depending on your wording, you'd probably get a fair bit of support, possibly even the NRA would support you depending on the nature of the proposed restrictions.
But this is the problem with the anti-gun nuts: for whatever reason, they don't really believe their agenda is a popular one, so they work through corrupt or intellectually shallow politicians and activist judges to subvert the constitution and undermine the will of the people.
Re:In archaic terms... (Score:5, Insightful)
An assault rifle is somewhat of a gray area, but I think that such a weapon is generally not thought of as a defensive weapon. Hence the name "assault".So forbidding assault weapons is likely outside of the "bear-ing" limit. A good hunting rifle, shotgun or a pistol of some sort would make a reasonable defensive weapon against criminals.
In the context of that interpretation, if an American citizen is defending themselves against Federal troops commanded by a rogue Administration striving to grab power via military force, they need weapons that are effective against those used by the Federal troops in localized battles. Clearly if the military has full auto guns or even selective fire assault weapons, only the similar level will do to defend against that force. I think most nukes however fall outside that level... To use a nuke in a "neighborhood defense" situation would be senseless - sure, you'd kill the attacking force, but you'd also destroy your neighborhood, your neighbors, and yourself.
From a practical standpoint, a rogue U.S. Administration that has to take power by fighting house-to-house against well armed American citizens will quickly fail. As each individual soldier looks into the eyes of yet another person who could easily be their brother, sister, mother, father, son, or daughter (and, occasionally, will actually be!) and kill them in cold blood to avoid their own demise, the soldiers will eventually (probably within a few hours of the Federal power grab) turn their weapons on their commanders and defect (along with their equipment) from the dark side. On the other hand, if the populace is unable to defend themselves, lesser and nonlethal (and hence much more palatable to individual soldiers/police) force (simple commands, stun grenades, Tasers etc) can be used to gain compliance. The latter approach would (I hope) fail eventually, but could continue for days/weeks/months/years with some combat situations ending up being very deadly (some groups of citizens who have a strong visceral desire to be free will die trying to avoid subjugation even if the odds are high they will fail and die trying).
The Founders didn't anticipate the power of modern weapons any more than they anticipated the power and potential of abuse of the Internet in the free speech arena. IMHO, they may have made abuse of these mediums (powerful weapons and the Internet) punishable by very stiff penalties, but they would not have banned or regulated them heavily in areas that would have hobbled their use under the Second or First Amendments.
Re:In archaic terms... (Score:5, Informative)
Re:In archaic terms... (Score:5, Insightful)
notebook? papers? (Score:5, Interesting)
The Fourth (Score:5, Insightful)
Re:The Fourth (Score:5, Informative)
Lock your phone people and then provide the code when a warrant is given. Nothing is in plain view and therefore not subject to search without *consent* or *warrant*.
The fourth only protects against 'unreasonable' searches without a warrant. A search incident to a lawful arrest has been, for almost a century, been (per SCOTUS interpretation) reasonable, and requires no warrant nor consent. Weeks v. United States, 232 U.S. 383, 392 (1914): "the right on the part of the Government, always recognized under English and American law, to search the person of the accused when legally arrested to discover and seize the fruits or evidences of crime. This right has been uniformly maintained in many cases."
Or, "The right without a search warrant contemporaneously to search persons lawfully arrested while committing crime and to search the place where the arrest is made in order to find and seize things connected with the crime as its fruits or as the means by which it was committed, as well as weapons and other things to effect an escape from custody, is not to be doubted." Agnello v. United States, 269 U.S. 20, 30 (1925)
United States v. Robinson, 414 U.S. 218. 235 (1973): A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification. It is the fact of the lawful arrest which establishes the authority to search, and we hold that in the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a `reasonable' search under that Amendment."
This is pretty old stuff, every first-year law student gets this in Constitutional Criminal Procedure. I'm not aware of any SCOTUS case law directly on point, but lower courts have been applying SILA ("Search Incident to a Lawful Arrest") to electronic devices for decades, e.g., United States v. Lynch, 908 F.Supp. 284, 287 (D.V.I. 1995): "the search and retrieval of the telephone numbers from [the defendant's] pager was justified as being incident to a valid arrest, even though [the defendant] had a reasonable expectation of privacy in the contents of the pager." (Cited with approval in U.S. v. BROOKES, Crim. No. 2004-0154 (V.I. 2005).) Cellphones and pagers have been held to be akin to wallets and address books which, if on a suspect's person or within the sphere of his immediate control at the time of arrest, are fair game.
So, not exactly sure how this is news; it's certainly nothing new.
Re:The Fourth (Score:5, Insightful)
As the device is controlled during your detention and you are no longer able to destroy evidence on the device or the digital data could hardly be called a weapon, there hardly seems any legal scope for accessing the private data on the device. Rather than allowing an individual to peruse your personal data for their own deviant gratification or allowing the confiscation of an expensive electronic device as a prima facie penalty for failing to show the proper grovelling respect (the cost of extended loss of use of the device, possibly years!?, hence the cost of replacement as well as the loss of access to the data and software contained within the device) and an ego based demonstration of power.
The whole idea of warrants is specifically an attempt to prevent abuses of power, harassment of individuals and the corrupt planting of evidence. In the case of digital 'evidence' the ability to plant false evidence is dangerously easy and virtually impossible to defend against, so there is no excuse not to ensure as much public oversight over that process as possible. Much the same for when you are questioned, that your lawyer be present perhaps the same should carry through to any electronic personal data storage device as it is very much a personal extension of an individuals own thoughts and private opinions.
Re:The Fourth (Score:5, Funny)
And then sue them under the DMCA for breaking the DRM-encryption on your copyrighted, poor-quality-recording rants about government intrusion!
TrueCrypt (Score:5, Interesting)
The law only get's in the way of the undereducated (Score:5, Interesting)
Come on people, Hackers, spies, political dissidents, and those persecuted by their government have had to do this all their lives. Now all US citizens have to do the same.
it's the price we pay for being safe from T E R R O R I S M .
iPhone plug? (Score:4, Insightful)
Nothing to do with the iPhone (Score:5, Insightful)
redundant obvious response: my little black book (Score:5, Insightful)
WTF? Have you been smoking the meth again?
There is NOTHING radical about the difference between a pocket sized notebook (little black book) and an iphone.
So it can record your voice instead of having to use a pen or pencil and writing information down.
Whatever. Nobody believes US law has anything to do with the constitution any more anyway.
That is one organized... (Score:5, Funny)
iPhone meets the Fourth Ammendment (Score:5, Funny)
4th Ammendment: [walking other way] Hello there, citizen!
iPhone: Oh hi! Who are you? Haven't seen you around here much.
4th: I'm the 4th Ammendment to the U.S. Constitution! I guarantee your right to be free from searches without a court-issued warrant.
iPhone: Ah, that's neat. I don't pay much attention to that politics stuff...
4th: Yeah, I know it's tough, that's why I'm out on the streets, trying to remind people of their civil liber-
[Suddenly NSA and DoJ leap out from an alley and attack 4th]
NSA: Rar!
DoJ: C'mere, bitch!
4th: Aaaaaaah!
iPhone: Dude! What the fuck?!
4th: Oh god, oh god! They're raping me! They're raping me right here on the street!
iPhone: Oh shit! Dude do you need help? [stepping forward] Cut it out you assholes!
NSA: [pulls out a switchblade]
DoJ: Back off, fucker, if you don't want to be next!
4th: Please help me! Please- Ah not there!
iPhone: Whoa dudes... Chill, seriously...
4th: [incoherent screaming]
iPhone: [backing away] Ah, yeah... I gotta go... check out the sale at Whole Foods or something... [starts running]
NSA: [shouting at iPhone] You didn't see shit!
4th: [moaning and sobbing]
[fin]
Security in Our Papers and Effects (Score:5, Interesting)
That point (an unproveable assertion, BTW) is totally irrelevant. The technology doesn't change our rights. We have the right to be secure in our papers and personal effects. That is obviously perfectly equivalent to records stored in the iPod. It might take a judge distracted by some arguing lawyers a few hours to decide that records stored elsewhere but accessed directly by the iPod are equivalent to the same old papers and effects, but it's an obvious conclusion.
The only relevant question is whether a cop stopping you for speeding or running a red light has probable cause to search your papers and personal effects for anything else. Which they obviously don't, especially since they've already got all the evidence of the moving violation crime they're accusing you of, and your preexisting papers could contain evidence of that only if they are accusing you of premeditated moving violations, which I think isn't even a legal charge.
The people who formulated and signed the Constitution were smart. So smart they didn't have to be able to conceive an iPhone. All they had to conceive was identifying our rights, and directing our government to protect them. And, along the couple centuries since then, we've updated their list of identified rights and required protections at least 17 more times. But none of those updates are because some gizmo appeared, even when some - like telegraphs, cars, airplanes, computers - transformed our society. Because we the people are still the same, with the same rights.
The rest of this crap is just an excuse for lawyers to make money and power brokers to steal more power from the people.
iPhone? (Score:5, Insightful)
Re:Intention of searches incident to arrest (Score:5, Informative)