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The Courts Cellphones Handhelds Privacy

Police Can Search Cell Phones Without Warrants 438

Hugh Pickens writes "The California Supreme Court has ruled 5 to 2 to allow police to search arrestees' cell phones without a warrant, saying defendants lose their privacy rights for any items they're carrying when taken into custody. Under US Supreme Court precedents, 'this loss of privacy allows police not only to seize anything of importance they find on the arrestee's body... but also to open and examine what they find,' the state court said. The dissenting justices said those rulings shouldn't be extended to modern cell phones that can store huge amounts of data and that the decision allows police 'to rummage at leisure through the wealth of personal and business information that can be carried on a mobile phone or handheld computer merely because the device was taken from an arrestee's person.' Interestingly enough, the Ohio Supreme Court reached an opposite conclusion in a December 2009 ruling that police had violated drug defendants' rights by searching their cell phones after their arrests. The Ohio-California split could prompt the US Supreme Court to take up the issue, says California Deputy Attorney General Victoria Wilson, who represented the prosecution in the case."
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Police Can Search Cell Phones Without Warrants

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  • by betterunixthanunix ( 980855 ) on Tuesday January 04, 2011 @09:21AM (#34752916)
    It won't be long before we see another court case concerning a defendant's right not to disclose his whole disk encryption passphrase.
  • Re:Passwords (Score:5, Insightful)

    by joh ( 27088 ) on Tuesday January 04, 2011 @09:31AM (#34753008)

    What if my device is password protected? Can I be compelled to hand over the password? Because I won't.

    What do they need the password for? They don't want to use the thing, they want the data. As long as you don't have your data encrypted having the device is more than enough for them, no password needed.

  • Re:Online services (Score:5, Insightful)

    by betterunixthanunix ( 980855 ) on Tuesday January 04, 2011 @09:36AM (#34753046)

    What if you store everything on the net?

    Then you forfeit your rights whether or not you are arrested.

  • Re:Passwords (Score:5, Insightful)

    by Hoplite3 ( 671379 ) on Tuesday January 04, 2011 @09:43AM (#34753100)

    You can be compelled to hand over a password, but it requires a court order. However, in the case of having your phone taken when you are arrested, the police don't need your password to see your data if it is unencrypted. They'll just read the phone memory with another device.

    Generally, it's easy for the police to seize your property, relatively risk-free for them to damage it, and difficult for you to get it back in a timely fashion.

    You can thank the drug war.

  • They were jealous (Score:5, Insightful)

    by houghi ( 78078 ) on Tuesday January 04, 2011 @09:47AM (#34753132)

    of what the TSA was able to do.

    You know some of the rights you still have? Enjoy them while they last. They WILL be taken away from you. And for those who tell you to contact your representatives or vote differently: those are the exact same people who voted for this.

    What is needed is actual use of the 2nd amendment and trow all politicians out and start over. The first time it worked. The government was disliked and was thrown out.

    I know it won't happen. Not until it is too late. It has happened before (also in other countries) and it will happen again (also in the USofA).

  • Re:Passwords (Score:5, Insightful)

    by localman57 ( 1340533 ) on Tuesday January 04, 2011 @09:51AM (#34753162)
    Even if it is backdoored, it probably isn't going to hurt you. If there is a secret backdoor in blackberries, AES encryption, etc, then the government isn't going to piss away that secret in order to bust some drug dealer or guy trading child porn. A backdoor like that would only be used in cases where you wanted to keep its existance secret, such a national security / espionage operations.
  • by RobertM1968 ( 951074 ) on Tuesday January 04, 2011 @09:55AM (#34753210) Homepage Journal

    ...So a responsible and limited application of this ruling would be to just limit such searches to data immediately available on the phone. But I suspect that police will not really respect the distinction.

    Even if they understand such a distinction (if one ever enters into ruling/precedent/law), nowadays, it's getting harder to differentiate between the two, with so many services and apps that blur the line between locally stored stuff and stuff stored in the cloud. Making the situation worse is that some of the normally locally stored stuff nowadays is often stored in the cloud (like my contacts).

    And even with the most sensible of laws/precedents/etc on this, I still would not trust the police to understand how to properly implement such searches in a way that does not violate such laws - not necessarily through bad intent on their part, but due to a lack of understanding of how the technology works, and how that relates to application of the law.

  • Re:Passwords (Score:1, Insightful)

    by Anonymous Coward on Tuesday January 04, 2011 @09:56AM (#34753220)
    You just wouldn't be able to get through life without a cold Fascist boot at your throat, huh? Keep kissing it...
  • Oblig xkcd (Score:4, Insightful)

    by 2names ( 531755 ) on Tuesday January 04, 2011 @10:39AM (#34753648)
  • Re:Passwords (Score:4, Insightful)

    by Idarubicin ( 579475 ) on Tuesday January 04, 2011 @11:20AM (#34754056) Journal

    But all this talk about encrypted cell phones makes me realize just how pedestrian my life really is. The most interesting thing on my cell phone (to me) is the text from my wife saying that our daughter is staying over at a friend's tonight. Mostly, it's all "Pick up milk" or "Will be late". Maybe an occasional "I'll take the Bears and the points" which isn't going to get me in too much trouble, because here in Chicago the cop is probably taking the Bears and the points too, with the same bookie.

    Actually, if the police wanted to nail you, your 'pedestrian' it's-only-a-little-bit-illegal gambling message is quite sufficient. It doesn't matter that the cop also gambles, just like it doesn't matter that he rolls through stop signs, or speeds on the highway, or sometimes smokes a joint with his buddies. Selective, infrequent enforcement of widely-committed acts is one of the most powerful tools the police have; it enables nearly arbitrary detention and harassment of virtually anyone, and those laws are unlikely to be a priority to ever come off the books because (through limited enforcement) they affect so few people directly. "But wait!", you say, "Surely I'm not a suspect, so I have nothing to worry about!" I wish you the best of luck playing those odds. It's a gamble that most of us would probably win -- but it works out breathtakingly badly for those who lose.

  • by element-o.p. ( 939033 ) on Tuesday January 04, 2011 @11:33AM (#34754190) Homepage

    the cellphone companies better stand up and FIGHT THIS or they may see people STOP carrying/buying these.

    You mean the way people boycotted the telcos when NSA wiretapped the telephone networks with neither warrant nor probable cause*? Or perhaps you mean the way the mass majority of the flying public stopped flying when TSA got a little too draconian with airport searches**?

    Look, I agree with your sentiment -- I really do -- but I have become convinced that the erstwhile "Land of the Free and Home of the Brave" has become the Land of Blindly Following Authority. The USA has become so complacent recently that we, as a nation, will do whatever we are told without question until it's too late. You and I may already be looking around wondering just exactly how we got here, but that question is not even on Joe and Jane Sixpack's radar yet.

    * Yes, I boycotted AT&T in the wake of the NSA wiretapping. It's one reason I bought an Android (my local carriers, AFAIK, did not participate in the wiretapping) over an iPhone.

    ** Yes, I have boycotted flying as much as I possibly can -- I have elected not to take three personal trips this year, although there is one business flight that I will be taking (fortunately, neither the arrival nor departure airports have AIT scanners, or I would have told my boss he's going solo on this trip) -- and have encouraged my friends to do likewise. I have even got taken to task by one friend [] over my proselytizing (warning: shameless plug to my personal blog).

  • by RsG ( 809189 ) on Tuesday January 04, 2011 @12:15PM (#34754668)

    What really strikes me as profoundly stupid about the whole "warrantless" business is the fact that warrants are not hard to get. If someone's arrested for possession (which is the sort of thing TFA is referring to) it should be trivially easy to get a warrant from a judge to search the individuals home, car, cell, computer, whatever. Making it warrantless means that the cops can go "fishing" for evidence of a crime when the bring someone in on a trivial charge, like traffic violations.

    Put another way, if the cops actually have good reasons for pulling data off a cell, the existing legal framework will let them do that easily. And if they don't have good enough reasons to go before a judge, why on earth should they be allowed to proceed?

  • by Duradin ( 1261418 ) on Tuesday January 04, 2011 @12:24PM (#34754806)

    For recent examples I blame 24 and Law and Order: SVU for convincing the masses that extraordinary ticking time bomb and [insert trendy 'vulnerable' group here] in imminent peril from evil mastermind [murderer|rapist|deviant] scenarios are very ordinary. People think this so to get [re-]elected politicians show how tough on crime they are by cutting the 'red tape' that 'protects' the criminals.

  • Re:Passwords (Score:4, Insightful)

    by guruevi ( 827432 ) <`moc.stiucricve' `ta' `ive'> on Tuesday January 04, 2011 @12:56PM (#34755220) Homepage

    The latest iDevices and Blackberries are encrypted by default (AES256) by the password and you can require stronger passwords than the 4-digits. That's how remote wipe works - it just sends a command which removes the encryption keys from the first block of memory in a few milliseconds, older devices took a few minutes/hours to completely wipe.

  • by sean.peters ( 568334 ) on Tuesday January 04, 2011 @01:54PM (#34755932) Homepage
    ... because if they're in a Faraday cage while they are looking through your phone, they're only seeing what's on the phone, not trolling through your Exchange/MobileMe/Dropbox/Flickr/etc accounts stored in the "cloud". And if they take the phone out of the cage to look at that stuff, the remote wipe kicks in.
  • by enjerth ( 892959 ) on Tuesday January 04, 2011 @02:10PM (#34756160)

    Probable cause? Like arresting you for resisting arrest?

    You can be taken into custody and held without charge for what, up to 48 hours? And there are enough laws out there that they could probably arrest you at any time for a number of things. So they can seize and search your phone, laptop, and any other possessions you have at any time, all without a warrant, should they decide that you're worthy of investigation. All they have to do is come up with some reason to arrest you. Like maybe for sneezing too loud in public.

  • by chimpo13 ( 471212 ) <> on Tuesday January 04, 2011 @02:53PM (#34756616) Homepage Journal

    I remember that post of yours. You aren't operating on all levels if you find it reasonable to flash a gun at a retail store employee to force a sale at your convenience. I would think that in any state, even Texas, if you tried that you'd end up talking to the cops and you'd lose your permit to carry. Now I'll remember that commodore64_love is a bit kooky and I'm sure there's a few other people who remember that post. It's not just a single AC.

  • Re:Passwords (Score:5, Insightful)

    by Idarubicin ( 579475 ) on Tuesday January 04, 2011 @03:06PM (#34756770) Journal

    Because as bad as police can be, the alternative (not having them) is much worse.

    I'm not entirely sure how you get from my statement that police should not employ selective enforcement as a means to arbitrary powers of search and seizure to the conclusion that I believe the police should be disbanded.

    Perhaps you've been (mis)led to believe that it is impossible to criticize someone or something you generally endorse? Is unconditional support (or, conversely, absolute rejection) the only possible response to all the actions of police -- or of politicians, or lawyers, or judges, or reporters, or doctors, or priests? Surely we're capable of more nuanced analysis. "Either you're with us or you're against us!" is a cheap rhetorical trick that works well in televised soundbites, but has no place is rational debate.

  • by Anonymous Coward on Tuesday January 04, 2011 @03:33PM (#34757112)

    Be polite, but remember that every question is also an effort to gain a confession, no matter how friendly the cop appears. It's not worth risking self-incrimination on the off chance that you're being stopped by someone who actually gives a shit about whatever extenuating circumstances you're going through. The usual line is "Sorry, I have no choice but to [issue a ticket|arrest you|impound your vehicle|whatever]," which is BS of course... everyone has a choice. The law imposes penalties for actions, yes, but officers have much discretion as to whether the threshold has been met for a given penalty, as well as the ability to triage if there's multiple events occurring simultaneously (and who's to say there's not?). Most cops will take another tick toward their quota 9 times out of 9. (The non-existent quota, of course, which works much the same as the "unlimited" data plan you have, with vaguely defined soft limits and targeting of outliers.) Then there's the fact that not writing you a ticket means making yet another (granted, dangerous) traffic stop instead of sleeping in the patrol car or playing Flight Control on their own phones, or whatever other BS they need to do to get through another day of their miserable lives.

    It wouldn't be so insulting if traffic stops were about anything other than revenue and control of the population. Fifteen percent of the population is stopped in an average year. FIFTEEN PERCENT. That's 100% within a 7 year period, excluding repeat offenders. The reason outstanding warrants are almost never served directly -- except for very serious crimes -- is that cops KNOW they'll pull you over sooner or later, because they pull EVERYONE over sooner or later. Same goes for AWOL soldiers BTW -- the military will check your home of record, and if you're not there they'll just drop it and wait for you to get pulled over someday. That's not to say that warrants shouldn't be served by any means, but the dragnet that is the traffic stop has almost nothing to do with the fact that you were a danger to public safety by having a tail light out, and everything to do with the convenience of revenue gathering and periodically detaining each and every citizen.

    So when you're stopped, protect yourself. Be polite, but refuse to answer questions other than those to establish your identity, refuse to have your vehicle searched whether or not there is any contraband in the vehicle, and ask if you're free to go at each step of the process. As the GP stated, the fact that you're not a criminal will never guarantee that you won't be treated like one.

The Force is what holds everything together. It has its dark side, and it has its light side. It's sort of like cosmic duct tape.