White House asks Supreme Court to rule on warrantless phone searches

White House asks Supreme Court to rule on warrantless phone searches

Summary: Should cops be allowed to search your phone if you've been arrested? The courts can't make up their minds, and the Obama administration wants to find out.

TOPICS: Privacy
(Image via CNET)

For years, the U.S. government and the courts have been at loggerheads over one key issue: can police search through your phone without a warrant if you're lawfully arrested?

The courts have yet to make a final decision on the matter, and the Obama administration says enough is enough.

Last week asked the Supreme Court to rule on whether or not the Fourth Amendment, which protects against unreasonable searches and seizures, allows warrantless phone searches.

According to The Washington Post, police arrested a Massachusetts man in 2007 who was allegedly selling drugs from his car. His cell phone was seized. An incoming call from "my house" led police to an online directory, which was used to associate the number with an address in Boston.

The suspect was ultimately detained and convicted. But he appealed, claiming that accessing the information, used as evidence that resulted in his conviction, was unlawful under the Fourth Amendment. The First Circuit Court of Appeals earlier in the year took the defendant's side. 

But the White House does not agree with the court's decision and wants a line drawing under it for good. Much of the confusion stems because "cell phones sit at the intersection of several different Fourth Amendment doctrines," according to the Supreme Court petition, filed earlier in August.

The government believes the First Circuit's decision conflicts with several other rulings which gave police discretion to search a suspect's items. Cell phones are no different from any other item on that person, the government argues.

But with a massive amount of data stored in cell phones and smartphones, from emails to text messages, phone numbers, and even location-based data, the courts are wary about the privacy implications. That said, the 2007 case, the Post notes, focused on a cell phone rather than a smartphone, which could make the court ruling irrelevant to our modern lives.

Topic: Privacy

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  • massive amount of data stored in cell phones

    Obviously the answer to why state officials are so intent on seizing phones.
  • What about passwords?

    What if folks start using encrypted data on phones? How about data stored "in the cloud" rather than on the physical phone, but accessible from the phone? (And, presumably, at least in some cases the only thing that will be used to access that data is the phone even if the person COULD but DOESN'T access it with some other device.)
    • Re passwords,

      I mean if they have access to the physical phone but don't know the password, can they either break the password or have the person forced to divulge the password?

      And related, what if it is a minor offense such as they stop someone for speeding and discover an outstanding warrant for failure to appear in court on another ticket and it turns out the phone contains information about some UNRELATED serious offense such as burglary?
      • David Miranda

        Was coerced into giving away his passwords. Granted it happened in the UK not here so no 4th Amendment but I can easily see authorities here tricking or intimidating people into giving them that information.
        • That was the UK ...

          which operates under different standards. Generally, in the US, being forced to verbally give up a password is viewed as being forced to testify against oneself. There is a fine line ... you can be forced to give up the key (a physical object) to a safe, but not the combination (something from your mind).

          There have been some issues about this at border checkpoints, where the government has much greater latitude to operate.
  • Should be a no-brainer slam dunk

    Just read the 4th Amendment. All searches or persons, papers, effects, etc, require a warrant, sworn by oath or affirmation, naming probable cause and the exact thing that is being sought.
    • Ha, ha

      That is so 20th century. (Actually, the brave new world is getting really creepy.)
  • Where does it stop?

    Exactly, Rick. With Eric Holder behind this, I can see PD's mining through every bit of data and turning it over the the Federal Government.
  • The Fourth Amendment

    Article IV:

    "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

    I would say that a person's cell phone would qualify as an "effect" in the meaning of this Article. If the police want to search a cell phone, let them convince a judge that there is probable cause. If there is probable cause, then fine, the judge can issue a warrant and the search can proceed. If there is NOT probable cause in the opinion of the judge, the search should NOT be allowed to proceed.

    This is already being violated by "stop and frisk" and related procedures where the police search anything and everything except the person's home without a warrant. In particular, the clause "no Warrants shall issue, but upon probable cause." is universally ignored by the NSA and other federal agencies. The FISA court is a mere rubber stamp. They have received tens of thousands of requests over the years and have only denied a handful. Cell phone searches without a warrant are just the tip of the iceberg of illegal searches and seizures by law enforcement.
    • What about your computer?

      Every time they go after anyone anymore you see the cops carry out their PC, Laptop, NAS box and Game Boy, Xbox.. ever wonder what ends up in the station's lounge?
  • Keep it clean

    The Court of Appeals got it right - the search was illegal, so the evidence obtained shouldn't have been admitted and, unfortunately, the guilty guy should go free. The 4th Amendment stands for the principle that protecting our privacy is worth letting some guilty people go free. It means we are not a police state.
    The NSA, FBI and IRS see things differently. I don't blame them for wanting to catch the bad guys. But they can't forget that we're NOT a police state.
    Advances in technology are making it harder to draw the line. Even this case pre-dates smarthphones, which have raised the stakes far beyond phone logs. Now, phones can store all sorts of documents, images, spreadsheets, audio & video files.
    My suggestion is to keep it clean. You don't need all that stuff on your phone. You can keep it all in something like a Cloudlocker (www.cloudlocker.it), which stays at home and access it from any device any time you want. Everything is streamed, nothing is cached so there's no record of anything on your phone. This is how the world turns. Technology is complicating the law, but it's also providing simple solutions.
    • It means that they have not yet officially

      turned us into a police state.. The government constantly tries to erode out freedoms and protections as well as trying to disarm the populous. If most PD's and SO's had their way the only ones with arms would be them and the military.. then we would be a police state.
  • Warrantless Phone Searches

    At least they're asking and not keeping up the pretense that they want to allow Americans to have a right to privacy. It's strange isn't it? The Supreme Court makes up a right to privacy - one that is not anywhere in the Constitution to allow abortion, but when it comes to the Fourth Amendment and searches and seizures - the same government wants to pretend that it's not mentioned. Let's just stop pretending that Obama cares about privacy at all.
    Steve Yuhas
  • All they would have to do is ask the NSA for it.

    All "legally" captured...
  • At war with itself

    Zack, the federal courts are part of the U.S. government. They are its Judicial branch. Your phrase "the U.S. government and the courts have been at loggerheads" sounds odd to those of us on this side of the pond.
    Robert Hahn
    • Separation of Powers

      Three branches of government in the U.S., Executive, Legislature and Judiciary. All are independent of each other (in theory).
      • Clarification

        When most people think of the US government they are thinking of the Executive branch. You are right though, Zack should have said "the Obama administration" or "the administration" "and the courts have been at loggerheads."
  • Legal to search, but only AFTER arrest

    Pre-conditions for arrest are basically the same as pre-conditions for search and seizure. You have to have reasonable suspicion that a crime has been, or is about to be, committed. Once you're arrested, police have the right to go through everything on your person. However, if your phone is encrypted, then you don't have to divulge the password since that would be self-incrimination.
  • Alexander/Clapper in 2016

    Ya know.... with the “war on terror” now in, what , it's 11th years and we only thwarted 54 terrorist plots, I am not feeling real safe... thats less than 5 per year. We need to get this war in high gear so it can function as it was planned. I have some ideas:
    Lets all vote en masse for the “Alexander/Clapper” ticket in 2016. A landslide vote would give them the mandate they need to get this going in the right direction. The first order of business after they are inaugurated would be the following:
    1) pass the “Patriot Act” as a constitutional amendment with explicit wording to allow it to supersede any other amendment, or the constitution itself, if needed (it goes without saying that it should be worded as vaguely as possible).
    2) Squash these “homegrown terrorist” that would snuff out your entire family in the blink of an eye by giving the ATF the ability to hire.... say, 1 million Democrats to go house-to-house and confiscate weapons.
    3) The confiscated weapons (especially the assault rifles) should be given to local police forces to arm them to the teeth,... just in case .... (of course the donated weapons couldnt be used against innocent citizens, only “targets” as defined by the “Patriot Act Amendment”)
    It makes me feel safer just thinking about it! We should be able to go from less than 5 thwarted terrorist plot per year to maybe over, say 2,776 in the first year alone.
    A heads up.... I am going to pre-order my “Alexander/Clapper 2016” bumper stickers, posters, hats, T-shirts, etc. now because with so many Americans so afraid of terrorists the suppliers of these items wont be able to keep up with the demand in 2016.
    Robert Parent
    • Hmm, that is a good reason

      for me to join the NRA, Join My Brother in getting an FFL and stock piling things your rapacious democrats cannot take.. easily.. your picture of the world is a scary place.. sounds way to close to hell Europe escaped from about 70 years ago. I think I will not join you in your crusade (and I am really hoping that your comment was tongue-in-cheek, I am a vet (USAF/USN both 1973-) and you, my friend, scare me a little... ];>