4th Amendment Takes Another Hit - Phone Records/Texts

I've argued quite often here in favor of a strong 4th Amendment (what a radical!), particularly in light of the continuous assault on it - especially since 9/11 and the Patriot Act.

I'll run down some of the ways this critical protection against unreasonable search and seizure has been so weakened in recent years once I delve into the latest assault a bit.

I speak of last week's ruling handed down by California's top court involving a 2007 arrest of someone who had purchased drugs from a police informant. Investigators later looked through the individuals phone and found text messages that implicated him in a drug deal. The suspect appealed the conviction, saying the evidence was gathered in violation of the Fourth Amendment, which prohibits unreasonable searches and seizures.

The justices disagreed: "The cell phone was an item (of personal property) on the person at the time of his arrest and during the administrative processing at the police station. Because the cell phone was immediately associated with defendant’s person, (police were) entitled to inspect its contents without a warrant."

But court went further - comparing the cell phone to personal effects like clothing. Worse, it argued that it wasn't because the police had a particular right in this particular case, or there was some special exception that allowed such a search, but rather, it argues that no exception was even necessary. In other words, this case was not an exception, but rather the NEW rule: cell phone records are now of little difference than the shirt on your back if you've been arrested. This is a deeply disturbing precedent if it holds.

MSNBC's Red Tape Chronicles reports:

The next time you're in California, you might not want to bring your cell phone with you. The California Supreme Court ruled Monday that police can search the cell phone of a person who's been arrested -- including text messages -- without obtaining a warrant, and use that data as evidence.

The ruling opens up disturbing possibilities, such as broad, warrantless searches of e-mails, documents and contacts on smart phones, tablet computers, and perhaps even laptop computers, according to legal expert Mark Rasch.

...

Rasch, former head of the Justice Department's computer crime unit, pulled no punches in his reaction to the ruling. "This ruling isn't just wrong, it's dangerous," said Rasch, now director of cybersecurity and privacy at computer security firm CSC in Virginia. "It's remarkable, because it simply misunderstands the nature of these devices."

The door is open for police to search the entire contents of iPhones or other smart phones that people routinely carry, he said. "In fact, I would be shocked if police weren't getting instructions right now to do just that," he said.

By applying the "personal property on the defendant's person" standard, Rasch said, the ruling could logically extend to tablets or even laptop computers, he said. It also flies in the face of established law, which prohibits the warrantless search of briefcases by police, other than a quick search for weapons, Rasch said.

...

Rasch said the analogies don't hold, however, as modern phones that can store years' worth of personal information are a far cry from drugs hidden in a cigarette case or clothes pockets. "There is a process for looking at data inside devices,” he said. “It's called a warrant."

The California ruling was not unanimous. Dissenting Justice Kathryn Werdegar raised similar concerns in her opinion. "The majority’s holding ... (grants) police carte blanche, with no showing of exigency, to rummage at leisure through the wealth of personal and business information that can be carried on a mobile phone or handheld computer merely because the device was taken from an arrestee’s person...The majority thus sanctions a highly intrusive and unjustified type of search, one meeting neither the warrant requirement nor the reasonableness requirement of the Fourth Amendment to the United States Constitution."

Jonathan Turley, a Constitutional law expert at George Washington University, took to his blog to raise his concerns about the ruling. "The Court has left the Fourth Amendment in tatters and this ruling is the natural extension of that trend," he wrote. "While the Framers wanted to require warrants for searches and seizures, the Court now allows the vast majority of searches and seizures to occur without warrants. As a result, the California Supreme Court would allow police to open cell phone files — the modern equivalent of letter and personal messages.”

Click here for more.

This decision will of course be appealed to the U.S. Supreme Court. But keep in mind, as I understand it, nearly 1/3 of all federal judges were appointed by George W. Bush...meaning we probably have something close to a Federalist Society majority running the courts. And what does that mean? Well, let's just say such judges and courts adhere to two key principles: corporations are always right, and law enforcement is always right.

In the meantime for Californians however, this decision means warrantless searches of cell phones is essentially state law now. One suggestion coming from the author of the article is use password-protection on your smart phones as a possible way to ward off a warrantless searches. While it's not clear that an arrested suspect could be compelled to divulge his or her password to police, at least legal arguments have not yet been made giving them that right.

Other Attacks on the 4th Amendment

As I have said, with the passage (and renewal) of Patriot Act, and the technological advancement in things like RFID tags and GPS tracking capabilities, the 4th Amendment is itself an endangered species. Just recently the Obama Administration has argued that prohibition against unreasonable searches and seizures does not apply to cell-site information mobile phone carriers retain on their customers.

The government has been arguing, consistently now, that federal law requires judges to approve their applications for location information from cell phone companies - even if the police don't have probable cause to obtain this sensitive information. Courts have the right under statute - and the duty under the Constitution - to demand that the government obtain a search warrant before seizing this private location data.

Mobile phone providers store data about where customers make and receive calls, based on the cell towers the customers' phones used. And that's why the government has been attempting to collect past mobile-phone tracking information. That way they can go back in the past for as long as the cell phone companies keep records.

The ACLU had recently provided documents showing that of the states randomly sampled, New Jersey and Florida used GPS tracking without obtaining probable cause or warrants. Four other states, California, Louisiana, Indiana, Nevada and the District of Columbia reported having obtained GPS data only after showing probable cause.

Those documents were part of the ongoing lawsuit by the ACLU and Electronic Frontier Foundation, in which they argued government tracking without a probable cause or warrant is a violation of the Constitution's Fourth Amendment.

The essential argument by privacy advocates, be it the tracking of a cell phone user, or placing a tracking device in a suspect's vehicle, is that, whether you're driving a car or carrying a cell phone you should not be more susceptible to government surveillance. The idea being, no one wants to feel as if a government agent is following you wherever you go - be it a friend's house, a place of worship, or a therapist's office - and certainly innocent Americans shouldn't have to feel that way.

This argument won the day, at least in this case, as a federal appeals court ruled last year the police can’t covertly track a suspect’s car using a GPS device for an extended period of time without getting a warrant. The ruling in the D.C. Court of Appeals overturned the conviction of a suspected cocaine dealer, saying that the use of a secret GPS tracking device on the man’s vehicle for two months violated the Fourth Amendment’s protection against unreasonable searches and seizures.

But while that case, in the meantime anyway, represented a victory, let's remember too that the FBI was found to have illegally collected more than 2,000 U.S. telephone call records between 2002 and 2006 by invoking terrorism emergencies that did not exist or simply by persuading phone companies to provide records.

E-mails obtained by The Washington Post have detailed how counter terrorism officials inside FBI headquarters did not follow their own procedures that were put in place to protect civil liberties. The stream of urgent requests for phone records also overwhelmed the FBI communications analysis unit with work that ultimately was not connected to imminent threats.

The Patriot Act versus the 4th Amendment

And also last year we saw Congress renew some of the most egregious components of the Constitution eviscerating Patriot Act including:

1. Allowing broad warrants to be issued by a secretive court for any type of record, from financial to medical, without the government having to declare that the information sought is connected to a terrorism or espionage investigation.

2. Renewing the so-called “roving wiretap” provision, allowing the FBI to obtain wiretaps from the secret court, known as the FISA court, without identifying the target or what method of communication is to be tapped.

3. Renewing the so-called “lone wolf” measure that allows FISA court warrants for the electronic monitoring of a person for whatever reason — even without showing that the suspect is an agent of a foreign power or a terrorist.

4. And of course, the government can still essentially break into your house as long as it doesn't tell you it did...may the 4th Amendment rest in peace.

Border Laptop Seizures

But wait, I'm not finished. The war on the 4th Amendment also includes these border zones in which the government is essentially allowed to stop and question people anywhere without suspicion within 100 miles of the border. This little known power of the federal government to set up immigration checkpoints far from the nation's border lines came about after 9/11, when Congress gave the Department of Homeland Security the right to use some of its powers deeper within the country.

According to the ACLU in October of 2008, the Department of Homeland Security had set up at least 33 internal checkpoints where they stop people, question them and ask them to prove citizenship. At that time I noted that if we allow these kinds of constitutional violations along our border, how long will it take before we start allowing them in the heartland? And I tend to be of the opinion that anytime we weaken the rights of ANYONE, we weaken them for EVERYONE.

And that brings us to the the supposed right of these border agents, for any reason they deem appropriate, to look into or even seize your laptop computer and all that it contains within. So, for ANY reason, YOUR laptop and everything you have stored on it, can be taken from you by the government...the same government responsible for Abu Graihb, Rendition, Guantanamo, warrantless wiretapping, military tribunals, the Patriot Act, and the evisceration of Habeus Corpus.

In response to the work of the ACLU, the government came back with a slightly less intrusive policy, requiring the CBP to complete a search of an electronic device within five days and ICE to complete a search within 30 days.

In addition, agents must take additional steps to inform and educate travelers about the searches, and the DHS Office for Civil Rights and Civil Liberties will conduct an assessment of the policy's impact on civil rights within 120 days.

The practice of suspicion-less laptop searches violates fundamental rights of freedom of speech and protection against unreasonable seizures and searches, and are especially invasive because devices like laptops contain personal data, which people should be able to keep private.

As I wrote on this blog in the past, "Can't we all agree that the 4th Amendment has taken enough of a beating over the past 8 years??? Can we not also agree that warrantless government searches of our homes is a grotesque subversion of the Constitution (I would also argue our privacy)?"

And now, a California court has ruled that smart phones are no different than a cigarette carton in a suspect's jacket? I would simply ask how can any free society benefit from, or reconcile, such policies as illegal search and seizures (including of laptops), warrantless wiretapping, the tracking of GPS devices in peoples cell phones, the utilization of "whole-body-imaging" (digital strip search) scanners in airports, the evisceration of Habeus Corpus, Rendition, Military Tribunals, and the Patriot Act? (and the list goes on and on).

My point in bringing all these up is so we stop viewing each, individual case as existing in some vacuum. What we must begin to see, clearly, is the pattern, and the direction we are headed.