Obama Admin. to Supreme Court: Allow Warrantless Smartphone Searches
August 22, 2013 7:12 PM
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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
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
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).
on academic law blog "The Volokh Conspiracy",
George Washington University
law school professor
, a prominent social libertarian points out a major flaw in the Obama administration's argument.
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 He says that asking the court to consider a case with outdated information may be an attempt to lead them to an inaccurate conclusion.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
the SCOTUS to consider --
Riley v. California
. That case involved a 2009 search of a customer's Samsung Electronics Comp., Ltd (
, 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
case, leaving SCOTUS as a potential route for a further appeal.
DOJ via The Washington Post [PDF]
The Volokh Conspiracy
This article is over a month old, voting and posting comments is disabled
8/23/2013 11:27:37 AM
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.
8/24/2013 8:49:49 AM
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.
8/26/2013 11:37:51 AM
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.
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