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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  He says that asking the court to consider a case with outdated information may be an attempt to lead them to an inaccurate conclusion.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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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.

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