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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  He says that asking the court to consider a case with outdated information may be an attempt to lead them to an inaccurate conclusion.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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High Capacity Flash
By Schadenfroh on 8/23/2013 9:26:52 AM , Rating: 1
This is perfectly reasonable and common sense document control. The extremists on the libertarian left & right fail to realize an important fact... that the founders could never have envisioned high-capacity flash memory that can store thousands of reels of (possibly sensitive and offensive) documents and release them all at once to crowds of unsuspecting people.

These black, rounded edge smartphones, some even with kevlar grips, use tech derived from weapons of war. They don't belong in the hands of average civilians, where they can be used to shoot footage of cops, school children, etc. but in the hands of well regulated organizations.

Since the libertarians on the left & right MUST have what amounts to weapons of war tech, it is completely reasonable that we enact common sense legislation that law enforcement officials can inspect the contents of said devices. The right to be secure in your papers is a collective right NOT an individual right.

RE: High Capacity Flash
By eagle470 on 8/23/2013 12:06:34 PM , Rating: 2
I really hope that comment is satire, otherwise I may go drown myself in a bottle of whiskey....and I HATE whiskey....

RE: High Capacity Flash
By M'n'M on 8/23/2013 12:39:28 PM , Rating: 2
Thx for proving Poe's Law is true.

RE: High Capacity Flash
By ClownPuncher on 8/23/2013 2:24:34 PM , Rating: 2
Haha. That was pretty good.

RE: High Capacity Flash
By 91TTZ on 8/23/2013 2:34:28 PM , Rating: 2
lol- well played.

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