Wednesday, June 22, 2011

Protecting Privacy (SB 914 - Leno): Police Searches of Smart Phone Data

Before I get to discussing the issue of "smart phone" searches, and a California bill to address it, let me just urge people to check out my recently published article "The Patriot Act and the Quiet Death of the US Bill of Rights."

Now to the issue of "phone searches". As I've argued quite often on this blog, the 4th Amendment has been under a withering assault over the last decade, particularly as a result of 9/11 and the Patriot Act.

One of the next areas of debate on this question is whether police, without a warrant, have the right to seize and search individuals smart phones or androids like they do a traditional cell phone? Its not hard to see why they should in fact be treated differently, being that modern cell phones are becoming more like all purpose computers than just phones, and therefore contain ALL KINDS of personal, private information the authorities have no right to without a warrant.

The problem is that in California, a privacy rights leader I should add, does not provide citizens with such protections. In fact, California's top court ruled against privacy in a case 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 the 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.

As MSNBC's Red Tape Chronicle reported at the time, "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."

It doesn't take a genius to immediately see the danger in this ruling, and the way it seems to fundamentally misunderstand the nature of modern devices like the Smart Phone. Likewise, it opens the door for police to search the entire contents of iPhones.

As Mark Rasch also noted, "By applying the "personal property on the defendant's person" standard, Rasch said, the ruling could logically extend to tablets or even laptop computers. 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...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. 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."

In response to the ruling, Jonathan Turley, a Constitutional law expert at George Washington University, wrote, "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.”

So now that I've provided a bit of a backdrop for you, let's get to an op-ed penned today by California State Senator Mark Leno in the California Progress Report entitled "You, and Your Smart Phone, Have a Right to Privacy":

He writes: 

If you like to attend political rallies, parades, protests or sit-ins, you might consider leaving your cell phone at home in the unlikely event arrests are made. A recent California Supreme Court decision allows police to rummage through all of the private information on your smart phone as part of an arrest, including your text messages and e-mails. This warrantless search is now legal in California, regardless of whether the information on the phone is relevant to the arrest or if criminal charges are ever filed.

Law enforcement has long had the right to search an arrestee in order to maintain officer safety and avoid destruction of evidence. Generally this included searching their clothing and other incidental items, such as a pack of cigarettes, where weapons or drugs could be hiding. Until now, smart phones were not included in this search.


Earlier this year I introduced a bill that would protect Californians against the Supreme Court decision allowing warrantless searches of the private information contained in portable electronic devices, including cell phones. Senate Bill 914 clarifies that an arrestee’s cell phone can only be accessed with a warrant, except in circumstances where there is an immediate threat to public safety or the arresting officer. It acknowledges that accessing information on a cell phone is fundamentally different than searching an arrested person’s wallet, cigarette pack or jeans pockets.

While SB 914 provides critical privacy safeguards for Californians, these protections are not new. Until the California Supreme Court decision earlier this year, state and local police correctly assumed that the state’s constitutional privacy protections prohibited warrantless searches of cell phones during an arrest. In addition, the Ohio Supreme Court has ruled that cell phone searches require a warrant, and federal law enforcement agencies also abide by the warrant protocol.

In most cases, searching a cell phone immediately during an arrest is an extraordinary measure. Once an arrest is made and the arrestee’s belongings are confiscated, a warrant for a cell phone search can be obtained if it is important to a criminal case. SB 914 will help ensure that a simple arrest – which may or may not lead to charges – is not used as a fishing expedition to obtain a person’s confidential information.

Read more here.

In the meantime for Californians however, this decision means warrantless searches of cell phones is essentially state law now. One suggestion I've heard is to 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.

As I have said, with the passage (and renewal) of Patriot Act, and the technological advancement of 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.

In other words cell phones are becoming an avenue for government to subvert privacy in a number of significant ways....something we should all be aware of...and why we should support SB 914.

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