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 He says that asking the court to consider a case with outdated information may be an attempt to lead them to an inaccurate conclusion.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
8/26/2013 12:59:47 PM
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.
8/26/2013 4:07:17 PM
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.
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