Obama administration asks Supreme Court to allow warrantless cellphone searches

head of joaquin said:

Yeah, elect freedom loving Republican like Bush and Palin, who demogogued opposition to the Patriot Act as "soft on terrorism"

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Bush? Freedom loving? He is no more freedom loving than Obama. One and the same.

Palin demagogued opposition to the Patriot act? I think you need to recheck your facts on that.

Slyfox696 said:

But "they" are not a single entity. They are hundreds and thousands of different people with different ideas, goals, ambitions, etc. There is no "they", just large numbers of people doing what they can to change America into their vision, whatever that vision may be.

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Yea, there is no "they"....

And none of "them" represent me. It is a "they" thing. "They" being the political elite. Those that believe they are beyond the law...and they exempt themselves from the very laws they expect us to follow....

Objective Voice said:

The above pretty much summarizes my take on the matter.

This isn't the first time the question of "personal privacy" and cellphones have come up where clarification of the 2nd Amendment is concerned. Folks just have to remember that the 2nd Amendment was intended to protect citizens from improper (warrantless) search of their homes and unauthorized seizure thereof. However, the Supreme Court has long ruled that local, state and federal authorities can search your vehicle as long as they have probably cause to do so.

In the case of the OP, searching the man's cellphone for phone calls or text messages would fall under probably cause since the issues centers around illegal drug dealing. And as we all know many drug dealers use their cell phones today to make contact with their clients in much the same way as beepers use to be their communications tool of choice. So, if beepers were fair game back then, why can't cellphones also be in-bounds today? Different communications device, more personal data, but the information/contact scheme is the same.

The Supreme Court does need to rule on this issue soon.

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4th Amendment...not 2nd.

Smelling weed is reasonable suspicion to search a car, the person driving the car being a scum bag is not reasonable suspicion. Same thing goes with searching their phone...just because he was a scum bag that doesnt automatically give them reasonable suspicion to search his phone.

Imnukingfutz said:

Its never too late to stand up for what is right. We can beat it at the ballot box. elect new blood that will do what is needed to be done to get it done. No compromises, No backroom dealings.

Three election cycles and it can be accomplished. We can do it by the next Presidents 1st midterm election.

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Sorry, but as long as people vote for the Dem/Rep duopoly NONE of that is going to change and nothing I've seen has hinted even REMOTELY to that happening anytime soon. People are sheeple and will continue voting for their brand of **** politicians even though the Dem/Reps have all but destroyed this country.

Imnukingfutz said:

4th Amendment...not 2nd.

Smelling weed is reasonable suspicion to search a car, the person driving the car being a scum bag is not reasonable suspicion. Same thing goes with searching their phone...just because he was a scum bag that doesnt automatically give them reasonable suspicion to search his phone.

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:doh

Thanks for the correction...been in a few discussions over gun rights lately...kinda got locked in. My bad.

tererun said:

New technologies will require precedent and new rulings on privacy. Though I certainly hope that the supreme court finds the contents of a phone which you own and is in your possession to be private it is within the powers of his position to ask for a definitive ruling on the matter and to challenge the idea those things are private. It is just the way we come up with decisions on these things. It is not obama's job to interpret the laws of privacy and it is completely appropriate for him to seek a ruling from the highest court on those issues. The only danger I find is that the court itself has become partisan and unreliable in these areas and may make a ruling that follows party lines rather than the ideals which inspired the protections against illegal searches. I cannot blame obama for the hackery of the supreme court in regards to political standing over constitutional interpretation.

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Why should it?

For example, why should an e-mail account that is password protected be considered different from a written letter in a sealed envelope? The difference in technology is completely and wholly irrelevant. The intent to keep from prying eyes... envelope seal vs password requirement... is exactly the same.

Thrilla said:

I spend a few years online opposing the Patriot act... back then it was Republicans supporting it, now it's you lemming Democrats... it's ok, you'll be back to opposing it after your team gets out of office.

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Bet on it. And visa versa.

Jango said:

Obama administration asks Supreme Court to allow warrantless cellphone searches | The Switch

The encroachments into our privacy and rights continue. I'm continually being saddened by moves like this by my government. I know though that I shouldn't be surprised given the amount of information I've digested over the years, but still... I do not like where we're heading as a nation with our policies around privacy and Constitutional rights. It matters not, either, what side of the aisle it comes from because both have done truly unAmerican things to us and will probably only continue to do so. Too bad we can't have a TV or movie President - one that doesn't negotiate with terrorists, strip us of Constitutional rights, invade our privacy by spying on us, or so many other things that are hampering the American experience today.

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I'm sure they are going to say.... "that's cute."

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.

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It takes some impressive mental gymnastics to equate a call from the person's own home as automatically being related to criminal activity and thus necessitating further investigation. Lots of people when they're away from home, get calls from home. That, in and of itself, has to be the least suspicious activity there can be, and certainly does not lead to a search of the person's home by itself.

It doesn't say that they verified the call was actually from the person's home.

radcen said:

Why should it?

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because some of these technologies were not conceived of by those who made the original constitution. back in those days you really only had physical mail which is why there was definition on that. The law has stated that things not included in the statement of law are not covered by that law. This is why the legislature was made to add new laws, and the judicial was made to interpret laws meaning to apply to other areas consistently. It does not always work that way, but that was the plan. Yes, this process takes a while with new things for precedent or new laws to be made, and sometimes will require a correction as unconstitutional laws get removed or old precedent gets challenged with new knowledge. That is why it has to happen or else we would not have any laws at all applying to privacy on the internet and since it is not rules on then there is no rules regarding their monitoring or use of info on it against you in a court of law.

radcen said:

For example, why should an e-mail account that is password protected be considered different from a written letter in a sealed envelope? The difference in technology is completely and wholly irrelevant. The intent to keep from prying eyes... envelope seal vs password requirement... is exactly the same.

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This needs to be addressed by the court. From what I understand of the laws regarding postal communications it was set up with those protections to allow for the secure transfer of correspondence. The post office is a public system which is commanded to keep confidentiality of contents. Still, even then the post office does do things like X-ray, sniff, or otherwise try to determine if dangerous and illegal substances are being sent via mail. If while your mail is in their possesion an aroma of pot comes out of it they are allowed to investigate it's contents. One must also note that as for pure correspondence the letter should be sealed and visibility made near impossible.

There are legal differences in how the internet works which do effect privacy laws. First off, unlike the post office your email could cross any number of private networks owned by different entities. In the case of the postal mail your letter is always within the post office's hands. The fact that you are using private property you do not own plays deeply into the court's interpretation of your legitimate expectation of privacy. Another factor that also plays into that is that a physical letter is physically not visible without opening it up, whereas a data packet is visible despite being encrypted. using code does not make your communications private. Encryption is basically a very advanced form of coded communication. If an entity can reverse engineer your code it would mean you were speaking openly on their equipment. It is hard, but not impossible, to reverse engineer the code of encryption. Here is where another issue of privacy comes in with the difference in communication. Your email is copied and transmitted across a number of servers. Those servers read and basically dictate the data in the open. A postal employee does not have to actually read and transmit your letter to bring it to another location. So the letter can remain sealed and unread with postal transportation, but is inherently opened and read from server to server in email.

These are technical legal differences the effect your expectation of privacy under the law. Just because you think it should be considered private does not mean it is. The law needs a line to define privacy. I do hope that the courts recognize the intent of having secure communications which cannot be read and apply that encryption cracking is the same as opening up an envelope and reading it's contents. The reality is that either the supreme court has to address the issue and define those parameters to apply to digital communications, or the legislature has to make a new law which gives that protection to digital communications because they are different. The supreme court may decide that due to the nature of digital communications they are open and public as per old laws and that would put the burden onto the legislature to define this new technology as private. I have a feeling the present court would simply bounce the issue to the legislature because we are getting to that point where we need a well written law that helps to define privacy of communications on the internet. Yes, i understand the problem with that being that congress is a compilation of screwballs, but the courts can only set precedent based on specific criteria presented in specific cases which means their ability to establish privacy across the board is limited. It really is a legislative issue, and that is why we are all doomed.

radcen said:

Bet on it. And visa versa.

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You know some of us have been against things no matter which president has done it. It should be quite clear with the patriot act that the problems brought up when it was created and during the bush years have only gotten worse when obama took office. There is no reason to think a republican president next time would not continue down that road. Anyone on either side who has switched their opinion on the patriot act because of who in charge is a short sighted moron IMO. It needs to be tossed out, and the government needs to be reigned in. I don't trust any president with that power, and i never trusted obama with it. One of the problems is the blame game where certain people think that their guy would never abuse that, but the other guy would. Those people should at least be against the power because you do not know it will be your guy in power so do not give anyone that power.

This is the Fourth Amendment:

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.

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If something is not in plain sight and you must LOOK for it, then you are conducting a search. Another member mentioned a false analogy: "if they catch you after committing a murder, can't they sieze (and search) your gun?" Then he asks, "why not the cell phone?"

Well in the first place, a weapon is an open and obvious tool that may have been used in the crime. A cell phone, on the other hand, is a communication device which stores data. The data is not "open and obvious," it must be "searched."

The 4th Amendment requires a search warrant citing probable cause upon oath or afffirmation to conduct a search of a persons "effects." What is the probable cause to search a cellphone? "He was talking on it so it must have something to do with the crime?" The police already have an arsenal of tools to use to fight crime, yet they keep pushing the boundaries of Constitutional rights in order to expand their powers to do so. Anyone notice most of these losses of Constitutional rights seem to be related to combatting drug crimes? Another good argument for decriminalizing something that should not be illegal in the first place!

At some point we need to say STOP!

Captain Adverse said:

This is the Fourth Amendment:



If something is not in plain sight and you must LOOK for it, then you are conducting a search. Another member mentioned a false analogy: "if they catch you after committing a murder, can't they sieze (and search) your gun?" Then he asks, "why not the cell phone?"

Well in the first place, a weapon is an open and obvious tool that may have been used in the crime. A cell phone, on the other hand, is a communication device which stores data. The data is not "open and obvious," it must be "searched."

The 4th Amendment requires a search warrant citing probable cause upon oath or afffirmation to conduct a search of a persons "effects." What is the probable cause to search a cellphone? "He was talking on it so it must have something to do with the crime?" The police already have an arsenal of tools to use to fight crime, yet they keep pushing the boundaries of Constitutional rights in order to expand their powers to do so. Anyone notice most of these losses of Constitutional rights seem to be related to combatting drug crimes? Another good argument for decriminalizing something that should not be illegal in the first place!

At some point we need to say STOP!

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There is a reasonable basis to search the phone; much like a gun is a tool that could be used in a murder a cellphone is a tool used in the sales of drugs.

Under your logic then the police can't search his pockets either..? Furthermore you fail to understand that the police did not immediately search the phone, they observed that a number labeled as "home" kept calling and it was only after a while that they took actions relating to the phone.

Also this isn't some random innocent grandma whose phone is being searched...this is a suspect in a crime.

greyhat said:

There is a reasonable basis to search the phone; much like a gun is a tool that could be used in a murder a cellphone is a tool used in the sales of drugs.

Under your logic then the police can't search his pockets either..? Furthermore you fail to understand that the police did not immediately search the phone, they observed that a number labeled as "home" kept calling and it was only after a while that they took actions relating to the phone.

Also this isn't some random innocent grandma whose phone is being searched...this is a suspect in a crime.

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In actual fact, the reason police are allowed to "search pockets" pursuant to an arrest is to conduct an "inventory search," not a search for "evidence." The suspect is under arrest and is being taken to jail. An inventory search allows police to ensure that the suspect is not taking anything with him that could cause harm to himself or the arresting officers, or to help him escape custody. Not the same thing as searching into a person's telephone.

It does not matter if they "observed" incoming calls. A search of the phone to determine this was a violation of the suspects right to privacy. As for it being a "tool," please recall that landline phones were often used as "tools" in the commission of crimes, yet law enforcement has always been required to obtain a search warrant in order to wiretap. The same principle applies with cell phones.