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View Diary: Obama Admin Petitions Supreme Court To Allow Warrantless Cell Phone Searches (302 comments)

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  •  A smart phone is simply a portable computer (40+ / 0-)

    If they need a warrant to search your PC or laptop, they should need a warrant to search your smart phone.

    I'm no philosopher, I am no poet, I'm just trying to help you out - Gomez (from the song Hamoa Beach)

    by jhecht on Tue Aug 20, 2013 at 07:13:48 AM PDT

    •  Not sure you can say "simply" (10+ / 0-)

      It's a combination of devices, including essentially a PC, but with the added functionality of a phone.

      I agree it should be treated legally as a computer, but I suspect the "phone" aspect of the device will be emphasized.

      •  The companies themselves (14+ / 0-)

        refer to them as "devices". I've worked on some of these marketing campaigns. They're VERY touchy about everyone referring to it as a device. They have operating systems and run multiple programs. It's functionality as a phone is just that, an addition functionality of the device.

        I am concerned that the case going to the SCOTUS is based on a device which primarily (and almost exclusively) functioned as a phone. The 1979 ruling regarding phone metadata covered their being able to look at a recent call log without a warrant. Those were records they had to get from the phone companies though based on the theory that it was a third party record & you've already shared that information. Getting that same info off a person's phone really is an interesting legal question. I don't see how getting anything beyond a recent call log could conceivably be constitutional. The amount of personal data and private communication that's contained on a modern device is easily accessible if they have possession of the phone. I don't think anyone would trust them to perform a limited search on the device. Text messages and voicemail should definitely be off limits. Having to unlock the phone and go into an app negates any "in plain sight" argument. The device may be in plain sight but its contents are not.

        "Compassion is the radicalism of our time." ~ Tenzin Gyatso, 14th Dalai Lama -7.88, -6.21

        by Siri on Tue Aug 20, 2013 at 08:39:08 AM PDT

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        •  cops have stopped people for using cellphones (3+ / 0-)
          Recommended by:
          elwior, Siri, pgm 01

          while driving and asked to see the call log to prove you weren't on the phone. that didn't seem kosher when I first heard of it.  Interesting.

          •  It seems those people consented to the search (1+ / 0-)
            Recommended by:
            Heavy Mettle

            I don't know if they can be legally compelled to do so but there could be consequences for refusal. For example, here in Illinois if you are pulled over for suspicion of DUI you can refuse a breathalyzer but if you refuse, your drivers license will be automatically suspended for something like 6 months. I don't know if there are any kind of ramifications for refusing a search of your call log. Ultimately they'll give you a ticket anyway & it's your word against the officer in court. They tend to win.  

            We hear a lot of incidents regarding police taking people's phones and deleting photos. That is illegal and should be actionable. However in terms of video, if a state prohibits recording someone without their consent and you are recording video with audio, they can arrest you under those statutes. Those laws are being challenged in various states. I know it was being litigated in Illinois based on a case where a man was recording his interaction with a cop that pulled him over and ended up arrested under an illegal wiretapping law. I'm not sure where it all is in the courts right now.

            Our laws and the limits on police and government are woefully out of synch with our modern technology. The default position really should never be that they are allowed to do something unless expressly prohibited. Rather they should operate under constraints of not being able to do something unless expressly allowed. It's my position that they should be allowed very little without probable cause.

            "Compassion is the radicalism of our time." ~ Tenzin Gyatso, 14th Dalai Lama -7.88, -6.21

            by Siri on Tue Aug 20, 2013 at 11:19:45 AM PDT

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            •  In regards to the DUI refusal of a breathalyzer (1+ / 0-)
              Recommended by:
              Siri

              that is part of what you sign up for when you get your license. It's different for basic search rights, to my knowledge. Since driving is a privilege and not a right then there's no right to do it intoxicated and as such they can revoke your license for any reason as long as it's equally applied. They could in theory pass a law that says that anyone who refuses to pass a breathalyzer test every time they enter their car could lose their license. But they can't do the same with a search.

              If debt were a moral issue then, lacking morals, corporations could never be in debt.

              by AoT on Tue Aug 20, 2013 at 12:36:47 PM PDT

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      •  My phone is more powerful than an (2+ / 0-)
        Recommended by:
        Heavy Mettle, AoT

        actual computer purchased 5 years ago. Like you pointed out, it's a computer with phone capabilities ... but then again, anyone's computer can function as a phone too. At any rate, I don't see a great difference.

    •  I think the limit of searches after arrest (4+ / 0-)
      Recommended by:
      Heavy Mettle, JerryNA, elwior, ColoTim

      Is for weapons and evidence on your person.  Here I think they will have a hard time with the suggestion that the arrest gives a right to go through emails for example

    •  Of course it's a violation... (8+ / 0-)

      .....but if there is a reasonable expectation that the perp used his phone to transact business, as is almost always the case with drug dealers, obtaining the warrant should have been easy as pie.

      Misconduct by the government is by definition NOT a government secret.

      by Doug in SF on Tue Aug 20, 2013 at 08:31:48 AM PDT

      [ Parent ]

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