Privacy v. Technology

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The 7th Circuit Court disallowed the argument, noting that Gant involved the search of a vehicle, and further noting that it was reasonable for  investigators to believe that the number of the cellphone in the defendant’s possession could be used as evidence to link him to other conspirators in the drug-trafficking operation under investigation. With respect to the evidence-preservation and officer-safety rationales contained in Robinson, the Court contended that the “conceivability” that co-conspirators could initiate a remote wipe of the contents of the defendant’s cellphone (evidence preservation) and the availability of stun guns shaped like cell phones (officer safety) made a warrantless search “reasonable,” even if the possibility of a remote wipe was not “probable.”

The unresolved issue? Though discussed by the court, it declined to decide what facts would be required to conduct a warrantless search more extensive than a search for the cell phone’s number. “We need not consider what level of risk to personal safety or to the preservation of evidence would be necessary to justify a more extensive search of a cell phone without a warrant, especially when we factor in the burden on the police of having to traipse about with Faraday bags or mirror-copying technology and having to be instructed in the use of these methods for preventing remote wiping or rendering it ineffectual,” wrote Posner–who then cut to the heart of the issue. “We can certainly imagine justifications for a more extensive search,” he added.

Given contradictory rulings in this arena, including a California State Supreme Court ruling allowing law enforcement officers to go through any content on a suspect’s cell phone, and an Ohio State Supreme Court ruling that such searches violate the Fourth Amendment, it seems likely that the Supreme Court will have to clarify such justifications.

As of now, both sides of the issue were framed by their respective proponents in the law enforcement community. Former Dallas FBI Agent Danny Defenbaugh defended the ruling, claiming it gives law enforcement officials an advantage in fighting crime. “I think not only will it help them, but it could be life saving,” he said. Paul Coggins, former U.S. Attorney for the Northern District of Texas, was far less sanguine. “Does (the ruling) mean officers now have the right to search through your phone, search through your search history, your photographs, your e-mails and the rest, because it could all be wiped clean?” he asked.

And lest anyone think encrypted cell phone passwords are the solution, because requiring one to divulge one’s password would violate the Fifth Amendment’s protection against self-incrimination, think again: in January, a Colorado judge ordered a woman to decrypt her own computer so prosecutors could use the files in it against her in a criminal case. That case will likely end up in front of the U.S. Supreme Court as well–which recently ruled 9-0 that affixing a GPS device to a vehicle for 28 days constitutes a search requiring a warrant. But even in that case, they left open the question of whether GPS monitoring for shorter periods of time would require a warrant.

Technology is rapidly eliminating anything resembling a genuine the right to privacy. Sadly, in a nation of people enthralled with posting the details of their lives on Internet websites, or loading substantial portions of those lives into cellphone and other portable devices, much of that elimination has been voluntary. Law enforcement officials, more often than not, are more than willing to exploit that enthusiasm. it behooves the courts to Constitutionally temper that enthusiasm.

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  • TG Browning

    I’m curious about that Colorado case. How does one force somebody to reveal a password for encrypted files without physical force? Yelling and screaming, frothing at the mouth and “threatening” somebody ain’t gonna cut it. I’m pretty damn sure I couldn’t remember a password correctly while being threatened.

    And if you really DID have something to hide, I suspect I’d have something set up to kill files if the proper password was entered after a couple or three attempts.

    Very strange.


  • Brujo Blanco


    Good point. What if the defendant says he cannot remember the password? Being forced to provide a password is forcing a defendant to testify against himself. The defendant is being forced to identify a cell phone as his by providing the password. This ruling would also require defendants to participate in searching his own files against his own interests.

    The rules are being changed without regard to the constitution.

    • Eyes_Open

      This is nothing new to this administration. They consider the Constitution worthless old paper.

  • W. C. Taqiyya

    This is all very interesting. No, it isn't. Lets be honest with ourselves for a minute. This whole 4th amendment conflict thing and the court rulings and legal reasons and so forth and so on is all baloney. It's baloney because at least since the Patriot Act, the 4th amendment has been rendered moot. All they have to do is whisper, 'suspected terror activity', and hello dolly. By which I mean, forget about it. And nothing smacks of terror like a password protected cell phone. Gives me the willies just thinking about it. Excuse me, I think I see some suspected terror activity in my noisy neighbor's basement. Be just a moment, while I call it in.

  • Michael

    They charge the defendent with contempt of court if they don't reveal the password. Been a few cases, mostly dealing with hacker types who often know more about computers than the authorities. I don't think I ever heard of a case where the defendent resisted the pressure. I think you can be jailed indefinately on a contempt charge. Deleting data quickly doesn't work. It only removes the pointers, the actual data is still there. At minimum, you have to rewrite every sector on the disk which takes significant time.

  • Eyes_Open

    In Georgia, at least, the rule of thumb is that if the phone is own the person it is fare game, but if it is in the car, regardless of whether it is visible, it is off limits without a warrant. Looks like that is going to be the way it is every where. Personally I always take my cell out of my pocket when I'm driving anyway.