Cell phone search needs no warrant, say Cal Supremes California's high court said police don't need a warrant to read text messages stored on the cell phones of people taken into custody. Monday's 5-2 decision (PDF) relied on separate decisions from the 1970s by the US Supreme Court that upheld warrantless searches of cigarette packs and clothing taken from suspects after they …
The Fourth amendment clearly holds here. If the police need a warrant to *tap* your phone line, then it stands to reason that the exact same information contained in the exact same device would equally require a warrant, or probable cause, to be searched.
Further, a modern cell phone quite literally contains one's "papers and effects" just as much as does a computer or filing cabinet. This is especially true here because the defendant was *in custody* having been found with illegal drugs on his person. A warrant would have been extremely easy to obtain with that kind of supporting evidence.
The information from tapping is a conversation - unless you are recording the actual conversations somehow that information isn't available on your phone.
Even if you were recording your conversations on your phone that conversation would become a document when it was recorded. Tapping applies to accessing the conversation in real time. It wouldn't even be analogous to keeping a pen register as they are also done in real time.
The closest pre-smartphone situation would be more like a briefcase - although the sheer volume of people now carrying large amounts of personal info creates a completely different environment and suggests to me that policy makers should be looking at this as a completely new area rather than trying to stretch existing laws by analogy.
It's not a cigarette pack, it's not clothes with who- knows- what crumpled in the pockets, a cell/smart phone (as stated above, a warrant is needed for a phoneline tap) can be the entirety of someone's documented life -- mail (can a cop open my mail without a warrant?), medical records (doctor- patient confidentiality?), banking/ financial info, and that's just a bit of what's available today to say nothing about what the next generations of technology will bring in.
Perhaps some of the judges were thinking of circa- early- 1980s pagers?
Correct me if I'm wrong in my understanding of the vagaries of US Law, but:
If a suspect is arrested and is in possession of letters, tapes and/or a diary, then the police may look into all those items the suspect had in his/her possession at the time of arrest. This only applies to first-level evidence - they may *not*, for example, use a set of keys found on the suspect to enter his/her domicile to look for extra evidence (although they technically may use to keys to show that the suspect had access to premises X, which is another kettle of fish altogether).
Extrapolating this to a PDA/mobile/laptop - based on the above, I would reasonably conclude that any electronic information *physically on the suspect* at the time of the arrest is fair game. So any SMS or phone number stored in the PDA/phone or any emails *stored locally on the electronic device* would be fair game. On the other hand, using the laptop/PDA to access email stored on a server would *not* be admissible (using the "key" analogy).
This is, of course, purely an intellectual exercise based on my understanding of existing USA rules of evidence. I may have it wrong. Bottom line, though - if you don't want people pawing through your correspondence, encode it and store it on a server, *not* on your device.
Let's take this a step further: if I have push mail on and my smartphone receives an email (or short message for that matter) while in possession of police, is that fair game? I didn't have that message on me when I was arrested.
Another question: if my phone is locked, are they allowed to hack it? Presumably no, since they did not have access to the information on the device when I was arrested, but it's a slippery slope in any case.
OTOH: any perp that doesn't use an autolocking phone is probably dumb enough to have made lots of other mistakes as well, so it may not make a difference in terms of conviction rates...
Obviously personal encryption products are the only answer to circumvent this CA ruling as well as the CALEA compliance requirements that are mandatory in the U,S. AND several other countries.
'Locking' cell/hand phones is a 'nothing' for The Plod as cell/hand phone manufacturers provide the tools/information to unlock telephones, as well as reading SIM content.
Pagers have certain advantages: location can not be determined by network; many pagers have minimal 'cracking' features and clear messages after reading.
Message vocalisation services, where SMS messages are intercepted and converted to voice messages also make a Plod's life harder
Well if that doesn't spur the development of instant-erase buttons on mobile/cell phones then nothing will.
Mind you, criminals aren't very smart. Why on earth would you ever use any public communications network for criminal activity when everybody knows The Establishment--Scotland Yard, FBI, security services et al--listens in with electronic ears the size of Jodrell Bank?
In the UK you are a criminal unless you can prove yourself more innocent than Christ.
If you want to work with kids you need CRB checks and the last government even wanted to include tittle tattle from neighbours and vague hunches by odd ball investigators...
If the establishment decides you might be a terrorist they can lock you up for months then place you under a control order with no proof required at all
If they can't get away with that they'll shoot you as you sit down in a train, then say 'oops sorry, but you're still dead mate'
You can even be fined very substantial amounts without the dvla/goverment/court even bothering to tell you thats what they are doing - first you know is when the bailiffs arrive - strangely enough they can make contact!
No, the governments in US and Europe are more out of control than Hitler, Stalin, Mugabwe or even the Chinese... All due to the laziness and complacency of the population - how many people think that 'if you have nothing to hide you have nothing to fear'...... how wrong they are, in 1930 Jews in Germany had nothing to hide.....
"No, the governments in US and Europe are more out of control than Hitler, Stalin, Mugabwe or even the Chinese... All due to the laziness and complacency of the population - how many people think that 'if you have nothing to hide you have nothing to fear'...... how wrong they are, in 1930 Jews in Germany had nothing to hide....."
Seriously? You are saying that shooting a bloke on the subway is "more out of control" than the Holocaust? I'm not saying things are great, but saying we are worse off here than Russia in the Stalinist purges is a joke.
>>"If they can't get away with that they'll shoot you as you sit down in a train, then say 'oops sorry, but you're still dead mate'"
Right, so in your paranoid fantasies, they didn't shoot an innocent man as a result of stunning incompetence (seemingly not realising that the consequence of their plans could easily be a death sentence for a misidentified person), but they actually knew exactly who he was, thought he was guilty of something (despite a complete lack of evidence), and decided to shoot him anyway.
And doing that once means that it's now standard policy.
>>"how many people think that 'if you have nothing to hide you have nothing to fear'..."
In the case we're actually discussing, innocent people who don't carry incriminating information around with them seem to have substantially less to fear than criminals who do.
As for your Hitler/Stalin nonsense, either you know nothing of the world and history, or your medications need tweaking.
"No, the governments in US and Europe are more out of control than Hitler, Stalin, Mugabwe or even the Chinese... All due to the laziness and complacency of the population..."
Close to the mark methinks (a check of my past posts on the ID card etc. would reveal very similar strong comments).
What's particularly frightening is that whilst modern spin and propaganda that emanates from the leaders of our so-called democracies doesn't have stridency of that from Goebbels, it's probably more effective.
In the wake of WWII, it's remarkable how complacent, disinterested, lemming-like and accepting of authority Western populations have become. It's as if nothing has been learned from WWII--as if the tragic sacrifice of 50M+ people seems to have been in vain.
Perhaps it's why war seemingly comes in cycles, complacency and laziness inevitably leading to a new innings.
To me, that innings already seems overdue.
Surely if the suspect has been 'taken into custody' or has been arrested then the search does not require a warrant?
If people were being told to give up their phones content on a simple 'stop & search' then I'd be up in arms, but if they've been arrested then 'probable cause' already exists in which case I'd say the search is reasonable.
People with Android phones. Use TextSecure from Whisper Systems. It's a drop in replacement for the standard SMS app, and works almost exactly the same. It uses public key encryption so your SMS are automatically encrypted, and to view them you have to enter the password for your private key. It also uses public key encryption to encrypt messages over the air between two TextSecure users.
Of course, the police can always go to the network providers who will have a log of all SMS transmitted, but messages encrypted over the air are safe from content inspection.
And of course, if you're in the UK, the police can simply throw you in jail for not handing over the password :( US users are safe from that shit though.
If this goes to the U.S. Supremes, we're totally screwed. A 5-4 decision will result in all electronic devices being subject to warrantless seizure and searches, just as now exists for anyone crossing into the U.S. over the border. They'll use the justification that total portability represents a gross threat from terrorism, drug trafficking, and child pornography. Just another small sacrifice of freedoms to serve the greater security ...
Try:
replace the word "freedom" with phrase "rights and responsibilities"
So for example
Freedom of information
becomes
rights and responsibilities of information.
The phrase also seems to add local context in sense that one's appreciation of rights & responsibilities in onw part of the world might differ in another.
Besides, Freedom seems such an over used and under defined word for sure.
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