Saturday, December 26, 2009
In a strange and perplexing twist of fate, I agree with the editors of the New York Times (and the Ohio Supreme Court). There is no reason why the police should not have to get a warrant to search the contents of a cell phone that they have seized.
From the Article: "the very personal information that new forms of technology aggregate must be accorded a significant degree of privacy."
No more 'very personal' than photographs or information in an address book.
If police can view written material that a subject has with them when they are arrested, why not a cell phone?
The Court seems to have based this ruling on a 'reasonable expectation of privacy' reasoning.
Alright. So if serial killers start documenting their exploits (and many do so, though often in other ways, like taking trophies) in a locked diary that they carry around with them, is that then grounds for 4th amendment protections? Cuz no one is supposed to read their diary, you see.
Actually, the diary probably has more of a reasonable expectation of privacy associated with it because you need a key. Unless you have some sort of security features installed (uncommon) any fool can pick up your cell phone and go through your stuff.
I need to know these things, in case I enter a life of crime in Ohio.
As I understand it, when someone is detained or arrested an exception is allowed for searches of the person and things immediately surrounding the person. This is premised on officer safety. Thus, an officer can open containers within reach of the perp -- but it's still premised on the need for officer safety.
Until our cell phones include a "Stun or Kill" feature I don't think the exception for opening a container should apply. It's supposed to be an exception, not a loophole.
If you're in a car, you have almost no rights -- because another basis for exception is applied. I've lost track of whether cops can legally rummage through your luggage in the trunk if you're pulled over for doing 60 in a 55 ... but like the old joke about infant baptism ... I've seen it done. I've even seen videos of mothers getting tasered in front of their kids -- presumably for reasons of officer safety.
Dawnfire's reasoning says that we should just throw out the 4th amendment as an impediment to law enforcement. Lots of the rest of the Bill of Rights are inconvenient to Big Government as well -- it sounds like Dawnfire would throw them out too. That's somewhat surprising because being a "Freeman" can lead you to being a strong supporter of the Bill of Rights -- which is where I'm at ... and even make you a "card carrying member of the ACLU" -- which I'm not, but nearly so.
We lost a lot of civil liberties because of the War on Drugs. We've lost still more because of the War on Terror. We may lose still more in the coming War on Global Warming, and such like. Expect more from the IRS in the looming War on Tax Collections. Baby Obama will need shoes!
Spot on, Mr. Paranoid. My view that it is illogical to allow an arresting officer to look at a pamphlet or book which is on the suspect's person but not an unprotected cell phone is a deliberate attack on the very concept of 4th Amendment protections.
Pointing out that there is no effective difference between opening the covers of a written work or flipping open a phone and pressing a button, that they are simple, routine, necessary steps for accessing information in a particular medium, is outright sedition.
You've successfully outed me as a fascist in hiding, covertly advancing the cause of the totalitarian state. Congratulations. My friends in the Federalist Society and Libertarian Party will be shocked.
"Until our cell phones include a "Stun or Kill" feature I don't think the exception for opening a container should apply."
According to your own admission then, this ruling is incorrect because cell phones CAN include 'Stun or Kill' features.
And that's on the open market. More creative and lethal weaponry than mere electric current are used by drug smugglers, foreign agents, and other such persons who are more likely to be arrested by police agencies.
I didn't read the judicial opinion. They may have some other fundamental reason for this ruling. I don't care that much. But the news article gave 'reasonable expectation of privacy' as the justification forbidding an arresting authority from looking at a suspect's 'very personal' cell phone, a device which is normally carried and used in public and which has no security features whatever. This isn't a matter of eavesdropping and 'digital' does not mean 'locked' or 'encrypted.' I don't find the idea that because the information on it is 'digital' it is fundamentally different from written material very convincing.
And neither, apparently, did 3 of the 7 Justices.
We crypto-fascists are everywhere...