Court Confirms Police Don't Need A Warrant To Do A Limited Search Of A Mobile Phone
from the lock-it-down dept
In a court ruling that came out a little while ago (just catching up now), Judge Richard Posner took the lead in an appeals court ruling that effectively reaffirmed the idea that police don't need a warrant to search mobile phones as they're arresting someone. Of course, this general concept is not new and I've discussed my concerns about police being able to search phones without a warrant in the past -- but this particular ruling does seem pretty limited. While Posner notes some of the bigger questions, he basically compares the phone to a diary, and focuses on the mere searching of basic data, like the address book, to suggest this particular search was limited, and doesn't raise any significant 4th amendment issue.It’s not even clear that we need a rule of law specific to cell phones or other computers. If police are entitled to open a pocket diary to copy the owner’s address, they should be entitled to turn on a cell phone to learn its number. If allowed to leaf through a pocket address book, as they are, United States v. Rodriguez, 995 F.2d 776, 778 (7th Cir. 1993), they should be entitled to read the address book in a cell phone. If forbidden to peruse love letters recognized as such found wedged between the pages of the address book, they should be forbidden to read love letters in the files of a cell phone.Effectively, the court more or less says that circumstances matter, and that in situations where there's a chance that data will get deleted or modified, it's perfectly reasonable to do a simple search of the mobile phone, but it could get thornier if it moves more in the direction of voyeurism, rather than as evidence for crimes. I'd certainly prefer much stronger privacy protections -- especially as a phone really is a window into much, much more than just a phone, but the ruling isn't much of a surprise and seems to align with other rulings on similar issues.
Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.
Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.
While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.
–The Techdirt Team
Filed Under: mobile phones, police, search, warrant
Reader Comments
Subscribe: RSS
View by: Time | Thread
Being Civil
They will likely harass, falsely arrest or assault any clod who dares stand up for his or her rights.
[ link to this | view in chronology ]
Re: Being Civil
Except for this cop. He gets really pissed, but at least he walks away.
https://www.youtube.com/watch?v=GzuMmOQnKx4
[ link to this | view in chronology ]
Re: Being Civil
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Re:
usually with US cops is the law of "because i said so"
(with an implied "or else...")
http://xkcd.com/538/
[ link to this | view in chronology ]
Re:
For instance, if a police officer pulls you over, with probable cause, they could do0 a plain sight inspection of the contents of your vehicle, but if they wanted to get in the trunk or a locked glovebox, they would need a warrant. Likewise, in the example illustrated in the article of an address book, they could look through the book and view what pertained to whatever prompted the search but would need to exclude anything that was unrelated to why they flipped it open even if it was evidence of a separate crime. If the address book or diary had a lock on it, they could not force it open without your consent or a warrant. I would think (read: hope) that applies the same to digital locks.
[ link to this | view in chronology ]
Re: DIDNT HAVE A CHOICE!
They made me give them my password so I could get the phone number to call my father complete and utter bullshit what they did was disgusting!
[ link to this | view in chronology ]
Moral of the story...
If your phone is locked with a password, I wonder if that counts as not able to be "searched" similar to if you get pulled over by a cop and he asks you to get out of your car. If you do, lock the door. He can't legally ask you to unlock it without a search warrant.
[ link to this | view in chronology ]
Re: Moral of the story...
This is reinforced by the fact that there are digital locks that are used for doors (hotel rooms, high-tech safes, etc) and thus the method of locking is actually identical to locks where the protection is clearly afforded.
[ link to this | view in chronology ]
Re: Moral of the story...
More bad legal advice on Techdirt.
[ link to this | view in chronology ]
Re: Re: Moral of the story...
[ link to this | view in chronology ]
Re: Re: Re: Moral of the story...
> to their shirts (and the US is the only country
> with the ego to wear these tin stars
Well, that's just a bald-faced lie. Plenty of countries/cities outside the US use badges, both metal and otherwise.
[ link to this | view in chronology ]
Re: Re: Moral of the story...
[ link to this | view in chronology ]
Re: Moral of the story...
[ link to this | view in chronology ]
Re: Re: Moral of the story...
Don't fall for shit like "Do you mind if I search your car" as yes or no could be interpreted as permission, or the infamous "What would you say if I asked to search your car"
[ link to this | view in chronology ]
Re: Moral of the story...
Just sayin'.
[ link to this | view in chronology ]
Re: Moral of the story...
[ link to this | view in chronology ]
This may have applied....
[ link to this | view in chronology ]
Re: This may have applied....
[ link to this | view in chronology ]
Re: This may have applied....
[ link to this | view in chronology ]
Phone
If police are entitled to open a pocket diary to copy the owner’s address, they should be entitled to turn on a cell phone to learn its number.
If police are entitled to open a pocket diary to copy the owner’s address, they should be entitled to turn on a cell phone to learn its number.
Because they might delete their phone number? Obviously it is more about:
If allowed to leaf through a pocket address book, as they are, they should be entitled to read the address book in a cell phone.
If you are being arrested, then they are taking you into custody. If the situation warrants (no pun intended) it, they should take you before a judge to review the contents of the phone as deemed necessary. No warrant per se, but oversight.
[ link to this | view in chronology ]
Re: Phone
In the end, the real problem is the extreme overreach of the police apparatus and how dangerously close to a Police State the US is.
[ link to this | view in chronology ]
Frnds Dont Let Frnds Txt N Drv.
A good friend holds the wheel so the driver can concentrate on texting.
But your honor! I was NOT texting!
I was updating my facebook status
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re: Re: Pre-pulled.
Low hanging fruit, I guess.
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
Re: Re:
Even if someone didn't, they could argue that they did.
[ link to this | view in chronology ]
Re:
I hit funny for the last part though. Loved it!
But your honor! I was NOT texting!
I was updating my facebook status
[ link to this | view in chronology ]
Response to: DannyB on Mar 9th, 2012 @ 8:25am
[ link to this | view in chronology ]
Here we have a situation where pretty much Mike is crying out for new laws, preferring strong privacy protections. Essentially, the law hasn't caught up to the idea of smart phones, and he wants them to address it and to tighten restrictions.
Yet, on the other hand, where the law doesn't handle online abuses of copyright or trademarks very well, he is against any new law that would cover the new situation and tighten restrictions.
If the existing laws are generally good enough, I would say that they are generally good enough across the board. Sucks when they don't agree with your view of the world, don't it Mike?
[ link to this | view in chronology ]
Re:
Now we can try to make the point that people should either agree with everything or disagree with everything as if the world was black and white.
It's pure genius.
[ link to this | view in chronology ]
Re: Re:
[ link to this | view in chronology ]
Re:
They're completely different concepts, so it is logical for Mike to be pro-privacy laws and anti-expanded copyright laws at the same time.
0/10 for trolling effort - Most other trolls try and make their statements semi-logical.
[ link to this | view in chronology ]
Re:
The fact that the digital world has differences with the physical world does not mean that new laws must be created for every aspect of the digital world. Rather, it means that each law must be carefully scrutinized prior to implementation in the digital world, to determine whether or not the differences substantially impact the law.
Further, I'd say you have mistaken Mike's position on Copyright law. It is not that he feels new laws aren't needed to enforce copyright in the digital world, but that he feels you can't enforce copyright in the digital world without destroying that world.
He actually is pushing a far more radical change than simply updating the laws (mechanism), he wants to update the policies to reflect new market realities. He wants a whole new approach to copyright for the internet.
And it is fairly evident that the internet provides significant paradigm shifts that scrutiny of policy is the proper level to begin dealing with the digital world.
[ link to this | view in chronology ]
Re: Re:
Don't rush a cyber security law, but quick! Fix this silly smart phone thing now, without considering the implications.
[ link to this | view in chronology ]
Re: Re: Re:
Tell us exactly why its wrong for Mike to "be in a rush to resolve this issue". If you want to start a discussion, go ahead, but give us something to go on. Who knows, you could be right, but simply saying its "odd" is not enough. You have to provide context.
[ link to this | view in chronology ]
Re: Re: Re: Re:
For Mike, it's all a one way street. Either we are rushing to expand or protect your rights, or nothing should be done. If anything would limit your rights, or more strongly support existing rights for others, well, it's bad.
[ link to this | view in chronology ]
Re:
No contradictions to be found here.
Here we have a situation where pretty much Mike is crying out for new laws, preferring strong privacy protections. Essentially, the law hasn't caught up to the idea of smart phones, and he wants them to address it and to tighten restrictions.
The law hasn't caught up with how to protect the privacy of someone who carries around their entire life in a convenient pocket sized computer. I think that is an important area to focus on creating narrowly defined protections for citizens' privacy.
Yet, on the other hand, where the law doesn't handle online abuses of copyright or trademarks very well, he is against any new law that would cover the new situation and tighten restrictions.
No. He is against new laws and enforcements that shatter the current protections for citizens' privacy and security. If a law was proposed that did not have severe consequences for privacy and security rights of citizens, I am sure Mike would be more willing to consider it. However, no recent law has been able to show that it does not harm privacy and security rights of citizens.
The key issue you fail to understand is that people's privacy and security trumps your right to have a monopoly.
[ link to this | view in chronology ]
Re:
[ link to this | view in chronology ]
I wonder why this is so hard for courts
The courts shouldn't be looking at a mobile phone as a pocket diary, unless that diary is 415 volumes and includes pictures, videos, movies, music, credit card numbers, legal documents, etc.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
Police are allowed to search your pockets during an arrest, as this is part of standard procedure to make sure you don't have any weapons.
Police are allowed to use the contents of your pockets, weapons or no, as evidence.
Past cases have said that this includes the full contents of a cellphone.
Regarding passwords, this denies them access to your phone through your phone (for some password software). You need to verify whether it prevents them from rooting around through files anyway.
Regardless as to the above, you might consider it worthwhile to password protect AND encrypt the contents of your phone. Recent rulings state that they need to know specifically the incriminating content they are looking for to force you to hand over the keys. If they're just fishing, these locks will hold.
I agree with this court's ruling as it does try to limit the exposure of the smartphone data to similar real-life situations without a carte-blanche dictate that they have absolute access.
[ link to this | view in chronology ]
No. Fucking No. Just No.
Number of people who have committed terrorist acts, both foreign and domestic, including in war zones such as Iraq, since 2001: less than 8,000. Note that this is a very GENEROUS estimate, based on the Pentagon's PR data. Internal DOD data (posed on Wikileaks) puts this closer to 3,000.
Number of people who's private information, as a result of being stored in a "secure government database" has been leaked to the public as a result of Anon and Wikileaks alone: over 80,000. This is from a single hack alone, actually, of which there have been several dozen since 2006.
Sorry, but no, you can NOT have access to this data, because you can NOT be trusted to keep it secure. If that means 50% more terrorists get through, fine, I live in middle-of-nowhere, Alabama and don't give a flying shit if 5 civilians in a metropolitan area die at the hands of a raging lunatic. I can live with that. What I cannot live with is me, those 5 poor bastards, and the other 357,000,000+ Americans being subjected to the police-state-of-the-month so that we MIGHT, MAYBE, POSSIBLY, KINDA, SORTA stop the raging lunatic from doing what he's probably gonna do, and get away with, regardless. What is private is PRIVATE and I do NOT trust the government (and the lowest bidder) to keep it that way, even if they do try to.
In the words of Benjamin Franklin (yanno, one of those "founding fathers" people keep throwing around so much) "He who would sacrifice liberty for security deserves neither." I don't know about the rest of the witless-idiot American public, but I would NEVER sacrifice my rights, my fellow citizen's rights, nor the lives of over 5,000 soldiers, just so I could save a few dozen civilians who, frankly, if they'd pay more attention to the world around them instead of burying their nose in their iPhone, could've probably saved themselves.
[ link to this | view in chronology ]
Re: No. Fucking No. Just No.
[ link to this | view in chronology ]
[ link to this | view in chronology ]
No texting while driving laws
[ link to this | view in chronology ]
Re: No texting while driving laws
[ link to this | view in chronology ]
Limited! Coming to a jurisdiction near you! Get yours while they last!
[ link to this | view in chronology ]
One might use an old phone as bait?
[ link to this | view in chronology ]
Simple...
[ link to this | view in chronology ]
Easy fix
Perform a factory data reset on your phone if you are ever pulled over. But don't fumble around too much getting it done, as the officer may become nervous & suspicious that you are trying to hide contraband, going for a weapon, or even trying to destroy evidence ;)
Then, pull your SD card out, and fick it to a dark corner of the vehicle. (Obviously I am joking here about the SD card, that is unless the officer is rediculously slow to approach.
By performing a FDR, who's to say that phone was your primary phone, or that you even own a phone? Perhaps you are just carrying a reset phone to your friend or family.
But of course make sure your important data is being backed up, before the unfortunate event of a pull-over.
[ link to this | view in chronology ]