You’re driving along the interstate when you see a familiar yet terrifying sight in the rear view mirror: A cop, right on your rear bumper, lights blazing. You pull over to the side of the road and get your license and registration ready. But the cop isn’t so interested in those things. He wants your phone.

Can the cop paw through your smart phone, see who you called, read all your texts and email, check your map locations, and leer at your Snapchat photos without getting permission from a judge?

Details.

What is your answer?

Amazingly enough, those searches are the subject of our problem at the TDCAA Advanced Appellate Advocacy Course going on now at the Baylor Law School.

Many of the attendees have made some persuasive and innovative arguments supporting such a search.

This is why I ALWAYS use the password feature on my smart phones. Anybody who doesn't keep their phone password protected is a fool. Not only can the cops rifle through your stuff, but so can some random thief!

Or, one could simply lead a law-abiding life and not worry about such things.

And its Govt officials like you that make me glad that UNBEATABLE encryption exists in the first place. Too many people equate the desire for privacy as somehow being involved in crime or having "something to hide. (whatever that "something" is).


Whole Disk Encryption is an extraordinary tool, properly deployed. With it, you can have agents of the most powerful human organization that has ever existed on our planet steal from you by force your little $300 laptop and, no matter what resources they throw at it - no matter what resources they throw at it (!!!) - they won't get your data off that laptop (unless they torture you into divulging the key, etc.). That's huge. It changes the balance of power, and the Powers That Be know that. They fear it, and rightly so.

quote:

If one would give me six lines written by the hand of the most honest man, I would find something in them to have him hanged.

---quote from a famous govt./religious official whom none of you has probably ever heard of.


Commentators often attempt to refute the nothing-to-hide argument by pointing to things people want to hide. But the problem with the nothing-to-hide argument is the underlying assumption that privacy is about hiding bad things. By accepting this assumption, we concede far too much ground and invite an unproductive discussion about information that people would very likely want to hide. As the computer-security specialist Bruce Schneier aptly notes, the nothing-to-hide argument stems from a faulty "premise that privacy is about hiding a wrong." Surveillance, for example, can inhibit such lawful activities as free speech, free association, and other First Amendment rights essential for democracy.

The deeper problem with the nothing-to-hide argument is that it myopically views privacy as a form of secrecy.

See http://www.amazon.com/Nothing-...curity/dp/0300172311

In any event, imagine what would have happened had Samuel Adams been pulled over by the 18th Century equivalent of the Texas DPS and a trooper unilaterally decided to rummage through Adams' Blackberry because, after all, if you have nothing to hide, you've nothing to fear, eh? So our diligent trooper comes across Mr. Adams' Contacts and sees the membership list for a group called the Sons of Liberty.

In these examples touted by the Govt. as a success against crime, they always fail to mention how many innocent people's cell phone were subjected to search before that one cop checked that one phone that had evidence of a real crime.

If we are willing to let ten guilty men go free before we'd convict an innocent man, why are we also willing to search MILLIONS of innocent Americans everyday in the hopes of catching that one guilty person?

This message has been edited. Last edited by: Molly,

But, if we presume that officers have validly stopped and seized the phone, then they must have probable cause + exigency to do so, or at least probable cause for an arrest (if phones may be seized and searched incident to arrest). That is, DPS is not going to be randomly pulling motorists over and demanding to look at people's mobile phones.

But, if instead DPS pulls over a person for a traffic violation, and DPS finds this person in possession of cocaine, a scale, baggies, and a large amount of cash, why shouldn't DPS then be able to seize the suspect's mobile phone and check it for other evidence of drug dealing, such as orders or a ledger?

We wouldn't have any qualms if the drug dealer were "old school" and kept such information on a flip notebook in his front pocket. New technology does not require us to change our existing legal framework simply because it is new technology. The type of information officers can seek on a phone is not any different than the types of information they might seek from other containers (such as briefcases, backpacks, etc.).

The convenience of a modern smartphone is that it allows us to collect a large amount of information in one place. The attendant trade-off is that we then have a large amount of information centralized and more easily observed by others, including law enforcement. We ought not create new categories of private information simply because technology changes our personal habits.

quote:

But, if instead DPS pulls over a person for a traffic violation, and DPS finds this person in possession of cocaine, a scale, baggies, and a large amount of cash, why shouldn't DPS then be able to seize the suspect's mobile phone and check it for other evidence of drug dealing, such as orders or a ledger?

If the rule was "get arrested for a drug case, we can look at your phone without a warrant", that would be one thing. But that scenario is so not true, LAH. The correct rule is: "get arrested for anything, we can look at your phone and no warrant is needed." The scenario that scares the hell out of me - is the DPS pulling me over and arresting me for not wearing my seatbelt (which the US Supreme Ct. said is okay to do in Atwater v. Lago Vista) and then going through my phone and looking at my naked pictures!

What does my not wearing a seatbelt (or not using a turn signal or being DWI or any thing else) have to do with cops being able to look at (1) my naked pictures, (2) my IRS tax records, (3) my school papers and notes, (4) my emails from my mom & dad, (5) my music and movie files, and (6) my drunken text messages back & forth with my significant (or not so significant) others???

Yet every time I get behind the wheel of my car in Texas (and many other states), I run the risk of having my private life completely and utterly exposed for reasons completely unrelated to public safety should I be accused of even the most minor of crimes by a Barney Fife wannabe like Bart Turek (of the Atwater case).

(While Arizona v. Gant provides me with some protection from warrantless car searches (unless my phone happens to be in my pocket when I get busted), if I am on foot and not in a vehicle, I lose even that limited amount.)

The Blackberry that I have holds 32 GB of data. That is basically my whole life. Thank God Blackberry (and Apple, and many other phones) provide me with FIPS 140-2 certified encryption so that even with a warrant, the cops cannot - absolutely, 150% cannot, never ever, ever - get into my phone. And there isn't a judge on the planet that can make me give up my encryption password. See In re Grand Jury Subpoena Duces Tecum, 11th Federal Circuit Ct of Appeals https://www.eff.org/sites/defa.../OpinionDoe22312.pdf

This is the reason why, in my opinion, DA's and judges and legislators over 40 (i.e. old people) should have absolutely no involvement with technology cases, the law or anything else like that. You guys are basically all technophobes who just do not understand what y'all are doing when it comes to this kind of stuff. In the language of the modern world, you guys are n00bs (and if you don't know what a n00b is without having to Google it or ask your grandkids, this further proves my point! See http://knowyourmeme.com/memes/noob)

I am not trying to be totally disrespectful here, but legal systems throughout the world are led by people who have little, if any, understanding of the digital world which most of us inhabit — and that's a very real problem. If you guys do not even understand the language of l33t, what business do you have in creating laws for the rest of us who do?

This message has been edited. Last edited by: Molly,

I'm 29, and my technical knowledge hovers somewhere above "enthusiast." I am not a "technophobe" by any stretch of the imagination.

I'm also a prosecutor who just left a CLE where we discussed this very issue in-depth. Looking at the majority of cases (such as Hawkins v. State of Georgia or People of California v. Diaz), most jurisdictions are treating the phone like a container found on a person during the search incident to arrest context, and I find their reasoning persuasive.

You obviously understand the increased risk you take carrying around a mini-computer in your pocket that contains private information. I think that we all understand the risks inherent in that (if Joe Smith steals my phone, he can probably get information about my bank account, etc.), but choose to ignore them for the convenience it provides. Similarly, I realize that if I get pulled over for a non-speeding traffic violation, and my phone is in my pocket, it could be searched incident to my very valid arrest (just like the wallet in my pants pocket, my checkbook, and probably the briefcase in my car).

What I am asking is why I shouldn't expect my mobile phone to be searched, and therefore be responsible for what's on there? Why should I expect that the information on there would remain private just because my phone is more powerful than the first computer I owned and can contain gigabytes upon gigabytes of data?

quote:

Why should I expect that the information on there would remain private just because my phone is more powerful than the first computer I owned and can contain gigabytes upon gigabytes of data?

You just answered your own question.

The Florida Supreme Court also found that same rational to apply when they recently decided the Smallwood v. State case. http://www.floridasupremecourt...s/2013/sc11-1130.pdf

Specifically,

[W]e . . . conclude that the electronic devices that operate as cell phones of today are materially distinguishable from the static, limited-capacity cigarette packet in Robinson, not only in the ability to hold, import, and export private information, but by the very personal and vast nature of the information that may be stored on them or accessed through the electronic devices. Consistent with this conclusion, we hold that the decision of the United States Supreme Court in Robinson, which governed the search of a static, non-interactive container, cannot be deemed analogous to the search of a modern electronic device cell phone.

. . . .

Gant demonstrates that while the search-incident-to-arrest warrant exception is still clearly valid, once an arrestee is physically separated from an item or thing, and thereby separated from any possible weapon or destructible evidence, the dual rationales for this search exception no longer apply. Applying Supreme Court precedent from Chimel and Gant to the instant case, we conclude that Officer Brown unquestionably was authorized to take physical possession of Smallwood’s electronic device used as a phone as part of the search incident to the arrest because the device was present on Smallwood’s body. See Chimel, 395 U.S. at 762-63. However, once the electronic, computer-like device was removed from Smallwood’s person, there was no possibility that Smallwood could use the device as a weapon, nor could he have destroyed any evidence that may have existed on the phone. Accordingly, neither the officer protection nor the evidence preservation justification for the warrant exception applied.



The U.S. First Circuit Ct of Appeals, in U.S. v. Wurie, also felt the same way. http://media.ca1.uscourts.gov/...ons/11-1792P-01A.pdf

I don't understand what the problem is with getting a warrant? Once the phone is turned off, its not like the data is going any place. Plus, with encryption being the default setting more and more, its not like the cops' job is going to get any easier in the future. Once I turn my password on, no force in Heaven or on Earth can get to my data. Nor can it be brute-forced since after three unsuccessful tries, the key is broken.

Here is an interesting article on the topic in the Harvard Journal of Law & Public Policy this past March 2013. http://papers.ssrn.com/sol3/pa...?abstract_id=2234319

As the Electronic Frontier Foundation recently told the Texas Court of Criminal Appeals, a cell phone isn't a pair of pants. https://www.eff.org/deeplinks/...hone-isnt-pair-pants

http://www.cca.courts.state.tx....asp?FilingID=289780

THAT's why that iPhone 5 case felt so tight! Should have stuck with Wrangler.

Dear TDCAA webmasters,

Thank you for adding the "ignore" option for selected people's posts. I fear I was losing the few spare IQ points I had left, and my patience for certain diatribes had long since been exacerbated.

I found it - thanks Andy!

You know the Forensic Toxicology boards aren't nearly as entertaining as TDCAA.....

quote:

Originally posted by Molly:
This is the reason why, in my opinion, DA's and judges and legislators over 40 (i.e. old people) should have absolutely no involvement with technology cases, the law or anything else like that. You guys are basically all technophobes who just do not understand what y'all are doing when it comes to this kind of stuff. In the language of the modern world, you guys are n00bs ...

I am not trying to be totally disrespectful here ...

Well, you failed. And unfortunately for you, this "old person" knows how to terminate your account. And it's long past time for that, I'm afraid. Not for being disrespectful, but for wasting the time of our members who are earnestly looking for real-life solutions to their legal questions. Feel free to return when you've passed the bar and gotten a real job--perhaps then you'll have something more constructive to add to this forum.

As the old TEX telephone registration system at UT used to conclude: "Goodbye, and good luck!"

This message has been edited. Last edited by: Shannon Edmonds,

quote:

Originally posted by Shannon Edmonds:
As the old TEX telephone registration system at UT used to conclude: "Goodbye, and good luck!"

What (sad) timing!

Bill Livingston, RIP

I was at some event on campus circa 1997... can't remember for the life of me what it was... some random event at Hogg Auditorium or something like that... but regardless, there were thousands of students in attendance at this event that Livingston was emceeing, none of whom had any idea who Livingston was.

So he goes to the podium to begin the evening and pulls the microphone towards him and says: "Welcome to the University of Texas at Austin."

And immediately the entire student body lost. Their. Minds. as if the world's most popular rock star had just popped up through a trap door at center stage. The ovation must have lasted a solid 10 or 15 seconds at least.

He just smiled and waited for the cheers to subside, and continued like nothing had happened.

For all you prosecutors out there, rest easy. I have learned, and teach, the question contains the answer. When confronted with the question "Do I need a warrant for....", the answer is simple- When in doubt, write it out (in an affidavit that is).

Google says NO

People who use Gmail and other free email systems have no reasonable expectation of privacy, according to papers filed in a U.S. district court by lawyers for Google. The filing was made in June, when Google moved to dismiss a case accusing it of breaking federal and state laws by scanning users' emails to help target its advertising campaigns.

Details.

Reminder: in Texas, you still have to look to statutory law. Check out the new provisions requiring a search warrant for most stored communications.