DOJ Complains That A Warrant To Search A Mobile Phone Makes It More Difficult To Catch CriminalsPosted: April 25, 2014
For Techdirt, Tim Cushing writes: The US government has entered its reply brief in the US vs. Wurie case and its argument in favor of warrantless searches of arrestees’ cell phones contains some truly terrible suppositions. Here’s a brief recap of the situation in this case:
In 2007, the police arrested a Massachusetts man who appeared to be selling crack cocaine from his car. The cops seized his cellphone and noticed that it was receiving calls from “My House.” They opened the phone to determine the number for “My House.” That led them to the man’s home, where the police found drugs, cash and guns.
The defendant was convicted, but on appeal he argued that accessing the information on his cellphone without a warrant violated his Fourth Amendment rights. Earlier this year, the First Circuit Court of Appeals accepted the man’s argument, ruling that the police should have gotten a warrant before accessing any information on the man’s phone.
As was noted by Orin Kerr at the Volokh Conspiracy, a lot has changed since 2007. The phone the police searched seven years ago was a grey flip phone with limited capabilities. Unfortunately, the Court is using this case to set precedent for a nation full of smartphones, which contain considerably more data and are roughly the equivalent of a person’s home computer, rather than the address book the government refers to in its arguments.
The government agrees that times are changing but counterintuitively argues that only law enforcement is being negatively affected by this. Every argument in favor of warrantless searches contains some sort of lamentation about how tech-savvy criminals will be able to cover up or destroy evidence contained on their phones before the police can crack open these new-fangled address books and copy everything down.
[T]he Founding officers have conducted full evidentiary searches of individuals lawfully arrested on probable cause to find evidence of the crime of arrest, including the examination of objects, containers, and written material; (ii) that in an unbroken series of decisions from 1914 to 2013, this Court has recognized that this historical search authority applies categorically; and (iii) that if an officer does not search an unlocked cell phone as soon as she finds it, a significant risk exists that the police will never be able to recover evidence contained on the phone.
This speedy dismantling of the Fourth Amendment pursuant to law enforcement’s desire to secure is only the preamble. As the reply brief rolls on, the government makes even more questionable assertions that view smartphones and technological advances as little more than escape vehicles for alleged felons. (h/t to Hanni Fakoury for pointing this part out.)
[S]earching an arrestee’s cell phone immediately upon arrest is often critical to protecting evidence against concealment in a locked or encrypted phone or remote destruction.The numerous party and amicus briefs in these cases have not seriously undermined that fundamental practical point. Although the briefs identify various techniques to prevent the remote-wiping problem (none of which is close to perfect), they barely address the principal problem that the government identified: automatic passcode-locking and encryption.
The government argues that impartial technological advancements somehow favor criminals. As it sees it, the path to the recovery of evidence should not be slowed by encryption or wiping or even the minimal effort needed to obtain a warrant. The police are presented as forever behind the curve, despite evidence otherwise…. (read more)
- DOJ urges Supreme Court to allow phone searches without a police warrant (therebel.org)
- Feds Beg Supreme Court to Let Them Search Phones Without a Warrant (blacklistednews.com)
- Feds use cellphone ‘kill switch’ as excuse for warrantless phone searching (dailycaller.com)
- The Feds Want To Be Able Search Through Your Phone Without A Warrant (businessinsider.com)
- Breaking: Holder DOJ Went Judge Shopping to Three Different Judges Armed With Criminal Warrants for James Rosen (thegatewaypundit.com)
- Bombshell: Ryan Lizza reports that DOJ fought to conceal warrant from James Rosen (twitchy.com)
- ‘Good luck with that’: Oversight Committee asks Eric Holder for communications between IRS, DOJ (twitchy.com)
- Frightening: Content from DOJ’s warrant application to spy on James Rosen [pics] (twitchy.com)