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  He says that asking the court to consider a case with outdated information may be an attempt to lead them to an inaccurate conclusion.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

"Nowadays, security guys break the Mac every single day. Every single day, they come out with a total exploit, your machine can be taken over totally. I dare anybody to do that once a month on the Windows machine." -- Bill Gates

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