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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  He says that asking the court to consider a case with outdated information may be an attempt to lead them to an inaccurate conclusion.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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Says the Arrogant POTUS
By GotThumbs on 8/22/2013 8:42:22 PM , Rating: 4
It blows my mind that this man has the balls/arrogance/stupidity to do what he does.

Problem is....he gets away with it.....and we suffer.

Best wishes on keeping what you earned.

By superflex on 8/23/2013 4:21:57 PM , Rating: 2

RE: Says the Arrogant POTUS
By FaaR on 8/23/2013 6:59:31 PM , Rating: 1
He gets away with what he does like every other US prez has done at least since the US entered the vietnam war over the bold-faced lie that they'd been attacked by the vietnamese, because the average american simply Does Not Care, and Can't Be Arsed to Educate Himself.

Instead you let yourselves be fooled by polemics and talking head politicians and media pundits telling you how Awful That OTHER Guy is, and you swallow that swallop and believe it because deep down inside, you WANT to believe that shit. Someone tells you what you want to hear, and instantly you go out and vote for him. That guy's actually a communist, you say?! Why, I just gotta go out and vote for you then!

You get the presidents you deserve, dude. Blame yourself, don't blame Obama. Or hell, even Bush.

RE: Says the Arrogant POTUS
By Piiman on 8/24/2013 9:18:20 AM , Rating: 2
"You get the presidents you deserve, dude. Blame yourself, don't blame Obama. Or hell, even Bush. "

How do you figure? These candidates are put in front of us and we're told to pick one. Who the hell picked them in the first place? Oh that’s right the party did, thanks but no thanks.

We get one of the two that were placed in front of us by the "man behind the curtain" So we basically get the President someone else wanted and since both parties are simply tag teaming us it doesn't matter who you vote for any more.

By Monkey's Uncle on 8/24/2013 11:18:55 AM , Rating: 3
You picked the party.

But you are right in this regard. It doesn't matter what party you align with - republican or democrat. Both will take great pleasure in trampling your constitutional rights to gain more power over your lives.

"So if you want to save the planet, feel free to drive your Hummer. Just avoid the drive thru line at McDonalds." -- Michael Asher

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