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Administration is upset about Circuit Court ruling that prohibits warrantless smartphone searches

President Barack Obama's (D) Assistant Attorney General (AG), Mythili Raman, and the U.S. Department of Justice (DoJ) have filed a petition to the Supreme Court of the United States (SCOTUS) to consider overriding a July decision by the U.S. Court of Appeals for the First Circuit which ruled that warrantless cell phone searches were a violation of the Fourth Amendment.  The 1st Circuit Court sets precedent for Maine, Massachusetts, New Hampshire, Puerto Rico, and Rhode Island.

The Obama administration has oft made the argument that the Fourth Amendment -- which protects a citizen's "houses, papers, and effects, against unreasonable searches and seizures" -- is "inconvenient" for law enforcement and should be pruned back to a much more limited form.  In its argument in favor of warrantless smartphone searches, the President's staff argues that notebooks, calendars, and pagers have all been found in past SCOTUS or Circuit Court rulings to be searchable without warrant (not eligible for Fourth Amendment protections).

In a post on academic law blog "The Volokh Conspiracy", George Washington University law school professor Orin Kerr, a prominent social libertarian points out a major flaw in the Obama administration's argument.
 
Smartphone search
The Obama administration is pushing for warrantless smartphone searches.
[Image Source: Cole Hayes]

He points out that the administration appears to have cherry-picked a case involving an older device (the case in question involved an classic "dumb" cell phone seized in a 2007 crack cocaine bust of a Mass. man).  He says that asking the court to consider a case with outdated information may be an attempt to lead them to an inaccurate conclusion.  He writes:

Given that the argument for treating cell phones differently from physical items hinges on the storage capacity and services available through smartphones, I think it would be very helpful for the Court to take a case involving a smartphone instead of a more primitive model. In recent years, smartphones quickly have become ubiquitous: About 35% of Americans owned one by May 2011, 46% owned one by February 2012, and 56% owned one by May 2013. (In case you’re wondering, 91% of Americans have cellphones, so about 61% of cell phones owned as of May 2013 are smart phones.) Reviewing a case with an earlier model phone would lead to a decision with facts that are atypical now and are getting more outdated every passing month.

He argues that it would be better for the SCOTUS to examine a separate case that law professor Stanford Univ. Jeff Fisher has asked the SCOTUS to consider -- Riley v. California.  That case involved a 2009 search of a customer's Samsung Electronics Comp., Ltd (KSC:005930Instinct M800, an early smartphone.  The case involved officers searching through a suspected gang member's smartphone for videos, pictures, and address book -- all without getting a warrant for the search, a key step of Fourth Amendment due process that prevents abuse.

The California Court of Appeal, Fourth District declined to hear the Riley case, leaving SCOTUS as a potential route for a further appeal.

Sources: DOJ via The Washington Post [PDF], The Volokh Conspiracy



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#nothanks
By Motoman on 8/22/2013 7:28:24 PM , Rating: 5
No thanks. Warrantless searches/seizures of any kind are a horrific abuse of the American people.

No exceptions.




RE: #nothanks
By Motoman on 8/22/2013 7:31:38 PM , Rating: 5
Sorry for the self-reply...just remembered a connected issue...

How many people are aware that US Customs can seize your laptop, tablet, cell phone, USB drives, memory cards, so on and so forth if you are coming into the USA from a foreign country, like Canada?

Even if you're a natural-born American citizen.

For no reason at all. Without a warrant.

They can just seize your electronics for further searching and investigating and give them back whenever they get around to it. Which as far as I can tell, might be never.

How's that for warrantless search and seizure? GTFO.


RE: #nothanks
By Jeffk464 on 8/22/2013 7:41:21 PM , Rating: 2
Yeah, customs agents can go through your stuff without probable cause. Its kind of like Fish and Game and the IRS, for some reason they aren't bound by the constitution.


RE: #nothanks
By Motoman on 8/22/2013 11:13:36 PM , Rating: 4
It's not a matter of just going through your stuff.

They can TAKE it. And KEEP it. For as long as they want.

Without so much as giving a reason as to why.


RE: #nothanks
By CZroe on 8/23/2013 8:43:53 AM , Rating: 2
In a 2007 flight from San Diego to Atlanta they searched my luggage without my knowledge and left a notice. They "took" something of mine on a domestic flight: my Best Buy receipts and extended warranty paperwork were gone. I'm sure they simply fell out when they were looking at things but they were definitely there before (it was the very last thing I put in).


RE: #nothanks
By bah12 on 8/26/2013 10:59:44 AM , Rating: 2
Well to be fair if you are buying from Best Buy AND purchasing the extended warranty, you probably should be on some sort of watch list :)


RE: #nothanks
By flatrock on 8/26/2013 12:59:47 PM , Rating: 2
I think that the issue is more of one where the courts have considered a search when crossing the international border to be reasonable and therefore not a violation of the Fourth Amendment.

It doesn't seem unreasonable to most people for them to search your car, and arguing that data on electronic devices should be treated differently than physical possessions has more pitfalls than benefits.

You can password protect things and make it inconvenient for them to do a quick search, and they are unlikely to bother without some reason.

I'm a US citizen living in Canada and working in the US. I cross pretty much daily. I get pulled in for random compliance checks once every couple months on average. I have been pulled in two days in a row, but I've also gone well over 6 months without getting pulled in.

You are required to leave all electronic devices in the car when it is searched, but I have never seen any evidence that they have searched either of the two phones and laptop I usually have with me. I don't know what you have to do before they decide to do a more through search, but I've managed to avoid it for the last six years. Well I can think of things that would result in a more through search, but those fall either under giving them probable cause, or just incredibly stupid.


RE: #nothanks
By JediJeb on 8/26/2013 4:07:17 PM , Rating: 2
This type of search and seizure has been enacted to comply with a "pending" international treaty to help curb "piracy" of intellectual property. I say "pending" because I believe we have not yet signed the treaty but customs agents have already begun enacting it. I also believe it has never come before the Supreme Court yet as a challenge. If it does I wonder if they will actually stop if it is shot down.


RE: #nothanks
By nafhan on 8/23/2013 10:28:14 AM , Rating: 2
Actually, this is true if you're within 100 miles of a US border, and international airports count as borders. I think it's the DHS that can do that, though. Completely insane.


RE: #nothanks
By spamreader1 on 8/23/2013 10:44:31 AM , Rating: 2
There is a HUGE difference between international travel and domestic travel.

Now as far as paper and personal documents, those really shouldn't be searched, except for maybe conceled items in say a book.


RE: #nothanks
By AlvinCool on 8/23/2013 11:27:37 AM , Rating: 2
You can always encrypt your HD with PGP. They can't break the encryption, no matter what they say and it's been proven on the laptops they have seized. However, the flip side is they will jail you for up to a year demanding the password.


RE: #nothanks
By Piiman on 8/24/2013 8:49:49 AM , Rating: 2
well if your phone isn't password protected or they have the password encryption isn't going to do jack. The only way it would stop them is if they have to take the drive out to search it. It's also easier to crack your pasword than the encryption and if they are allowed to search it they will probably be given the right to demand you supply the password.
However my phone is MY property and you can not search it without a warrant. How hard is that to understand? If the SCOTUS allows this they should be shot for treason.


RE: #nothanks
By Brockway on 8/26/2013 11:37:51 AM , Rating: 2
The supreme court allowed taxing a non-purchase for a service that we aren't allowed to purchase across state lines. How the heck does that fall under the commerce clause? I wouldn't be surprised if they fast track ruling it legal to search phones and any other digital devices without a warrant or probable cause.


RE: #nothanks
By DT_Reader on 8/27/2013 8:53:06 PM , Rating: 2
Technically and legally, you're not yet in the USA and thus not yet protected by the Constitution _until_ you're allowed in by Customs and Immigration. They can search you all they want, and you've agreed to let them by attempting to enter.

Want to be covered by the Constitution at all times? Don't leave the country.

Not here and don't want to be searched? Stay out.

Sorry, but that's been established law since, oh, 1776.


RE: #nothanks
By Jeffk464 on 8/22/2013 7:39:41 PM , Rating: 2
Is the president suppose to be telling the supreme court how to vote. Guess I need to go back and retake american history.


RE: #nothanks
By middlehead on 8/23/2013 12:24:57 AM , Rating: 4
He is allowed to give them his opinion, and even recommendations.

They are allowed to tell him to suck every dick he sees.

And they had best do so.


RE: #nothanks
By thurston2 on 8/23/2013 7:12:22 AM , Rating: 3
I'm as left as they come and Obama is not worth defending. He is no different than the man who served before him.


RE: #nothanks
By Breathless on 8/23/2013 11:51:50 AM , Rating: 2
Unfortunately, most of your fellow leftist buddies don't feel the same way, and see nothing as his fault. Its quite remarkable.


RE: #nothanks
By thurston2 on 8/23/2013 12:18:33 PM , Rating: 4
A lot of the ones I personally know feel the same as me, he sucks. He has really turned out to be a huge disappointment, but really the entire government has turned into a big disappointment Repubs and Dems suck equally.


RE: #nothanks
By Skywalker123 on 8/23/2013 1:25:42 PM , Rating: 2
Actually, the turnaround is remarkable, on one leftist website, Counterpunch, they used to love him, now he's reviled


RE: #nothanks
By FaaR on 8/23/2013 6:34:04 PM , Rating: 2
As a non-american, it really did not take very long at all to see that Obama's promises of hope and change really was nothing but a massive smoke-screen of lies and deceit. I'm talking weeks here post-election, not months, or years. If you listened to the news and followed what the man said and what his administration did, you could tell pretty much straight away the man was a complete liar, sham and a fraud.

There was never any intent of changing anything. All the dems wanted was to get back in power, and I'm sure Obama himself was equally eager I might add.

I'm SO baffled by the american right who hate on Obama, because he really is no different from Dubya Bush. The two are so similar policy-wise it's creepy. Only reason one might think otherwise is if you believe what the (even more lying than Obama) right-winger talking heads on commerical radio, Fox News etc say.

Obama = Bush Jr's third and fourth terms. Seriously.


RE: #nothanks
By Reclaimer77 on 8/23/13, Rating: 0
RE: #nothanks
By thurston2 on 8/23/2013 9:37:33 PM , Rating: 2
They are pretty much the same.


RE: #nothanks
By FaaR on 8/23/2013 10:28:29 PM , Rating: 2
quote:
Well I guess if you're an idiot they are the "same".

Oh yeah? Well describe the monumental, grand canyon-like differences then which I must have missed, because...well I must have missed them! As glaringly obvious as they must be, that only an idiot would indeed miss them.

...Because if you actually educate yourself instead of rely on rightwinger lying pundits and/or lying and unbalanced Foxnews as your sole source of disinformation, you really won't find that big a gulch between the two actually.

Taxes, bailouts, wars, medicaid, immigration, education, "counterterrorism" and more are all very similar.

...But I guess fricken obamacare changes everything, doesn't it. Way to get hung up on a minor detail to lose view of the full picture.


RE: #nothanks
By Reclaimer77 on 8/24/13, Rating: -1
RE: #nothanks
By Piiman on 8/24/2013 8:54:20 AM , Rating: 2
"Well I guess if you're an idiot they are the "same". "
And you're an idoit if you don't.

Get a clue both parties are in on "it" They are both taking away our freedoms.


RE: #nothanks
By KCjoker on 8/24/2013 2:09:14 AM , Rating: 1
BS...not even Bush trampled on the constitution like Obama has...not even close. Did bush push for a 1/3 of the us economy to be run by Gov't?NO in doing so lie to the public saying the policy was not a tax then argue before the supreme court that it was legal because it IS a tax. It's the insane liberals that are the hypocrits...they would've stormed the white house had bush tried any number of things Obama is doing. They were upset for about a week about the IRS scandal and Journalist scandel. However everything is the repubs fault again in their eyes. bush sucked but Obama is so much worse it's insane. Wait until the next repub potus starts using executive orders like Obama has done and all the sudden it'll be a huge controversy.


RE: #nothanks
By FaaR on 8/24/2013 5:41:21 AM , Rating: 3
Lol, here's another who's fallen for the rightwinger pundit propaganda hook line and sinker. Bush issued tons and tons of executive orders, and he spent more money than Obama (guess where all that federal debt that he racked up came from - yeah that's right, money spent by the POTUS.)

Obama's "so much worse that it's insane" - yeah, if you're a blinkered idiot who can't see the forest for the trees, yes. ;)


RE: #nothanks
By Reclaimer77 on 8/24/13, Rating: 0
RE: #nothanks
By sleepeeg3 on 8/24/2013 7:33:07 AM , Rating: 4
Bush... Obama... the real problem is that all of you have been tricked into taking sides in the government blame game, when progressing government erosion of our freedoms is the real problem.

They both suck. They both have the same agenda to grow government. They want you to believe one side is better, so you ultimately end up supporting government expansion. Until we the people wake up and stop taking all the free candy they keep offering us, they are only going to become more intrusive.


RE: #nothanks
By Reclaimer77 on 8/24/13, Rating: -1
RE: #nothanks
By Piiman on 8/24/2013 9:01:22 AM , Rating: 2
BINGO! We have a winner!


RE: #nothanks
By Piiman on 8/24/2013 9:00:20 AM , Rating: 2
Hey moron no one is blaming Bush in this thread they are saying they are the SAME. Can you not read?

You are truly a moron if you can't see both parties are just tag teaming us.

I'd tell you to get a clue but I don't think you’re smart enough to know what a clue even is. You're nothing but a rightwing idiot parrot


RE: #nothanks
By spaced_ on 8/28/2013 6:02:59 PM , Rating: 2
quote:
Hey moron no one is blaming Bush in this thread they are saying they are the SAME. Can you not read?


You're pushing one's intellectual capabilities here.

The point is, he has picked a side and you're not on it, so you must be wrong and the enemy.

If he figures out you or everyone else replying to him doesn't actually have a side, his head might explode.


RE: #nothanks
By flatrock on 8/26/2013 1:22:20 PM , Rating: 2
There's quite a bit of truth to that, but Bush was relatively liberal on social issues. There were quite a few issues on which the right wing were unhappy with Bush. As for intelligence gathering and the fourth amendment, anyone in that office relies heavily on intelligence in order to make anything remotely resembling informed decisions.

Making poor decisions based on poor or absent information would make him far less popular than backing a heavily restricted view on the fourth amendment.

That is unless you have the charisma of Bill Clinton in which case you can have your administration support restricting privacy and accidentally bomb a Chinese embassy in Belgrade due to bad intelligence.


RE: #nothanks
By Piiman on 8/24/2013 8:51:19 AM , Rating: 2
Its no different than your buddies thinking GWB was a great President. Pot kettle back ring a bell?


RE: #nothanks
By Ammohunt on 8/23/2013 2:07:12 PM , Rating: 1
This is what you get when you vote issues. Are we learning anything? at least the prior president was a leader whether you agreed with him or not.


RE: #nothanks
By boeush on 8/23/2013 6:40:25 PM , Rating: 2
quote:
at least the prior president was a leader
Yeah, he lead us unflinchingly and unapologetically straight toward and then right over the cliff. And then again. And again.

I've no love for Obama, and neither do most left-leaning voters. However, in the last Presidential election they were given a choice of Obama vs. Romney: snake oil salesman (and sellout) who at least pays them lip service, vs. used car salesman (and sellout) who not-so-secretly hates them. Not much of a choice...


RE: #nothanks
By FaaR on 8/23/2013 6:48:23 PM , Rating: 2
"Leader", George "they misunderestimated me" W. Bush? Don't make me laugh!

"Now watch this drive!"


RE: #nothanks
By Reclaimer77 on 8/22/2013 8:51:19 PM , Rating: 2
The Constitution makes it clear that ANY items fall under it's protections.

I don't care if it's a smartphone, or a dumbphone. Why should there be a difference in the eyes of the law? It's absurd. I don't care if I'm walking around with a fucking abacus! You can NOT search it without a warrant!


RE: #nothanks
By retrospooty on 8/22/2013 10:25:12 PM , Rating: 4
RE: #nothanks
By Monkey's Uncle on 8/23/2013 1:42:52 PM , Rating: 2
So I wonder of Mr Obama will open HIS smartphones (I'm sure he has a dozen of them for specific purposes) up for searches? What's good for the gander, right?


RE: #nothanks
By Ammohunt on 8/23/2013 2:11:41 PM , Rating: 2
This is the exact reason i abandoned my smartphone and started using a scroll case for all my important information its still covered under "Papers" under the 4th amendment.


RE: #nothanks
By Piiman on 8/24/2013 9:04:05 AM , Rating: 2
The Constitution DOES NOT say "any item" anywhere in it.


RE: #nothanks
By lagomorpha on 8/23/2013 8:55:02 AM , Rating: 2
quote:
horrific abuse of the American people


Hopefully historians will make that Obama's legacy.


RE: #nothanks
By FITCamaro on 8/23/2013 12:40:30 PM , Rating: 2
That's racist.


RE: #nothanks
By Jaybus on 8/26/2013 5:13:04 PM , Rating: 2
Racist???


RE: #nothanks
By FITCamaro on 8/23/2013 12:40:04 PM , Rating: 2
But....change....


RE: #nothanks
By eskimospy on 8/29/2013 6:26:45 PM , Rating: 2
You can't actually mean this.

So when a police officer arrests someone he just saw murder another individual he can't search his pockets for weapons without getting a warrant? If a mad bomber runs into Grand Central and the police jump on him, they can't go through his pockets to find the detonator without a warrant? If they find it, can they not seize it without court approval?

These are extreme examples of course, but they clearly show how warrants are absolutely not needed for plenty of situations.

The abuse of warrantless searches by the last two administrations is absolutely awful and should be opposed at every turn, but give me a break.


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