Unlimited Search

Jerry Brown is getting conservative in his old age:

California Gov. Jerry Brown is vetoing legislation requiring police to obtain a court warrant to search the mobile phones of suspects at the time of any arrest.

The Sunday veto means that when police arrest anybody in the Golden State, they may search that person’s mobile phone — which in the digital age likely means the contents of persons’ e-mail, call records, text messages, photos, banking activity, cloud-storage services, and even where the phone has traveled.

There’s really very little difference between a cop coming into your house and searching your computer, and a cop searching your smartphone. I wonder if you have to give the police the unlock code for your phone?

Also, too: Since the State Department is working on a panic button for smartphones, maybe we’ll soon have the technology to avoid intrusive search by our own police.

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51 replies
  1. 1
    drkrick says:

    I wonder if you have to give the police the unlock code for your phone?

    You don’t have to. They’ll just seize it, and if it gets damaged during the process of trying to hack in, hoocodanode?

  2. 2
    soonergrunt says:

    Sounds like time for somebody to make an app for that.

  3. 3
    cleek says:

    we need a fucking Privacy Amendment

  4. 4
    Napoleon says:

    Jerry Brown is getting conservative in his old age.

    I think it was Mother Jones that ran a story on him prior to the election and I was a little surprised that in reality his record is such that he is the type of Dem that any real Dem voter should hate. The only reason you would vote for him is because the other guy is worse (the same reason you would vote for Ben Nelson in a general election in Montana).

  5. 5
    djork says:

    Wouldn’t refusing to give your passcode under those circumstances be covered under the 5th amendment?

  6. 6
    arguingwithsignposts says:

    @cleek: We have one. Sadly, it’s been gutted.

  7. 7
    barath says:

    If we can just get him to pay attention to peak oil and make major changes in energy policy like he did when he was governor the first time around, I think I’d give him a pass on just about everything else…

  8. 8
    Paul in KY says:

    @djork: Excellent question. I would say it ought to. However, I’m no lawyer.

    Hope burnspesq or another lawyer gives their opinion.

  9. 9
    Bill E Pilgrim says:

    @Napoleon: Yeah he’s never actually been a classic liberal Democrat as people seem to imagine. His whole theme when he was Governor before was austerity, personal austerity especially which got all the press but the other kind as well.

    After taking office, Brown gained a reputation as a fiscal conservative. The American Conservative later noted he was “much more of a fiscal conservative than Governor Reagan.”

  10. 10
    Bill E Pilgrim says:

    My iPhone has an “Erase Data” switch in the passcode settings I’ve noticed, which says if you turn it on it will erase all data on the phone after 10 failed passcode attempts.

    It would be nice if you could change the 10 to a smaller number, but otherwise it seems to be somewhat of a safeguard.

  11. 11
    Wag says:

    Why is anyone surprised by this. Just listen to
    The original version on California Uber Alles by the DK’s. Your Uncool Neice was suspicious of Brown and his Suede Denim Secret Police back then, too

  12. 12
    jonas says:

    Ugh. Brown’s progressive on a lot of issues, but he’s always been — and moreso since he was mayor of Oakland — a “law and order” politician, meaning he’s generally open to all kinds of petty tyranny by local law enforcement.

  13. 13
    Rafer Janders says:

    @djork:

    It would. You never have to tell the police anything, under than, in limited circumstances, your name.

  14. 14
    AuldBlackJack says:

    Last week, California’s Supreme Court reached a controversial 5-2 decision in People v. Diaz (PDF), holding that police officers may lawfully search mobile phones found on arrested individuals’ persons without first obtaining a search warrant. The court reasoned that mobile phones, like cigarette packs and wallets, fall under the search incident to arrest exception to the Fourth Amendment to the Constitution.

    From: Why you should always encrypt your smartphone

  15. 15
  16. 16

    Meanwhile, our crass corporate overlords have found a way to profit off all of the newly unemployed. Because in this consumer culture, there’s nothing you can’t try to make money off of! Yes folks, it’s the commercialization of unemployment … who didn’t see this one coming?

  17. 17
    barath says:

    @Southern Beale:

    Oh, I thought you were going to link to the fact that unemployment checks in many states are no longer checks but debit cards that the big banks can charge fees on.

  18. 18
    Belafon (formerly anonevent) says:

    To be contrarian: Why wouldn’t the cell phone be covered under the same legal framework as your wallet or purse?

  19. 19
    Cat Lady says:

    @Southern Beale:

    You know what I’d buy? A card to send to wingnuts I know expressing sympathy that they’re too fucking stupid to live, but you know, said in iambic pentameter.

  20. 20
    SRW1 says:

    Since the State Department is working on a panic button for smartphones, maybe we’ll soon have the technology to avoid intrusive search by our own police.

    How very German!

  21. 21
    NCSteve says:

    Just to inject a little lawyerly contrarianism into to the mix, the bill applied to people who’d been arrested, not people who’d just been subjected to being stopped and questioned under Terry v. Ohio (which requires only a “reasonable articulable suspicion that criminal activity is afoot.”) The standard for arresting someone is the same as the standard for obtaining a search warrant: probable cause.

    A reasonable argument can be made that going through the cell of someone who’s been arrested is the same as going through someone’s house, which would take a warrant (which would pretty much automatically be granted if the owner/occupant had been arrested and arraigned). A reasonable argument can also be made that going through someone’s cell is the same as going through all the other stuff the suspect had in his pockets at booking, looking for evidence of criminal activity. Is all the stuff on your cell more like a phone number or address written on a matchbook or a little pocket notebook (back in the bygone days when people carried matches and wrote notes on pieces of paper), or is it more like going to your house and downloading everything off your computer (back in the days when people used to have computers so big they had to be left in their houses)?

  22. 22
    mining city guy says:

    @Napoleon Ben Nelson is the Senator from Nebraska so I, as a Montana resident, could never vote for him. But, if I was in Nebraska, I would be reluctant to vote for him. The opposition would have to be pretty bad.In Montana Jon Tester is running against Denny Rehberg who had been Montana’s sole Congressman.Rehberg would be horrible to have in the Senate but I regard Tester as being a pretty good Senator

  23. 23
    spartacus says:

    That State Department panic button thingy is only for, like, Egyptians and Syrians, right?

    I mean, who in the State Department is going to admit that we need a “pro-democracy” movement in America? Seems like that kind of thing just gets a person in trouble: P.J. Crowley, Peter Van Buren….

  24. 24
    Gilles de Rais says:

    Jerry Brown was always conservative. Always.

    Anyone who has ever told you anything else was willfully distorting his record.

  25. 25
    ChrisB says:

    I bet that panic button doesn’t just wipe your address book clean: it will probably also download its contents to the NSA.

  26. 26
    MTiffany says:

    There’s really very little difference between a cop coming into your house and searching your computer, and a cop searching your smartphone.

    Then be smart. Don’t buy a smartphone.

    I wonder if you have to give the police the unlock code for your phone?

    They can ask, but until the Fifth Amendment gets overturned by the Roberts’ Court, you can refuse to answer.

    Also, too: Since the State Department is working on a panic button for smartphones, maybe we’ll soon have the technology to avoid intrusive search by our own police.

    Which means that particular technology will be illegal to sell or possess here in the US.

  27. 27
    Brewzor says:

    @Napoleon: Ben Nelson doesn’t live in Montana

  28. 28
    IrishGirl says:

    Wait, I consider myself very liberal and I don’t have a problem with that. If the person had a printed address book with them, that would be searchable. So why isn’t a phone?

    Is the problem that all of the data isn’t actually stored ON the phone itself but in a variety of locations? I think that’s splitting hairs ridiculously for the purposes of searches. That would entail the police being able to seize a phone but then during forensic analysis having to specify what is and is not native in the phone’s memory there for evidence.

    It’s no different when they examine a computer subsequent to arrest. Whatever was viewed by that computer (ie, some footprint was left behind) is all fair game. However any un-downloaded content SHOULD not be fair game and would have to be obtained under separate search warrant. But I didn’t interpret the post as saying that or am I misreading it?

    BTW, I have done computer and mobile device forensics for private investigation firms, have 15 years computer programming experience, and used to be in law enforcement (a long time ago)….so that’s my background for asking these questions.

  29. 29
    kc says:

    I wonder if you have to give the police the unlock code for your phone?

    Fuck, no.

  30. 30
    soonergrunt says:

    BoxCryptor for Android–encrypts DropBox files:
    https://market.android.com/details?id=com.boxcryptor.android&feature=search_result
    I’m sure that something similar exists for iPhone, doesn’t it?

  31. 31
    Rafer Janders says:

    @AuldBlackJack:

    Last week, California’s Supreme Court reached a controversial 5-2 decision in People v. Diaz (PDF), holding that police officers may lawfully search mobile phones found on arrested individuals’ persons without first obtaining a search warrant. The court reasoned that mobile phones, like cigarette packs and wallets, fall under the search incident to arrest exception to the Fourth Amendment to the Constitution.

    This makes sense. Because just like my mobile phone, my cigarette pack and wallet also contain a complete record of my physical movements, everyone single person I know and communicate with and the written transcripts of many of our conversations, personal photos and videos, and links to my complete financial data.

  32. 32
    burnspbesq says:

    @Bill E Pilgrim:

    What Bill E. Pilgrom said. Every iPhone and iPad user should have that feature enabled. And regardless of whether there is a real legal basis for refusing, I would refuse to give up the passcode. It’s arguably a self-incrimination issue, although I vaguely remember some not-so-helpful case law under something called the “act of production doctrine.”

    Let the lawyers sort it out after the cops wipe your phone by making 10 wrong guesses.

  33. 33
    matryoshka says:

    Am I in some new region of cynicism? I assumed the police, government, whatev (you know, “they”) could already access everything, all the time, if they want to.

  34. 34
    burnspbesq says:

    ETA: One of the things I’ve learned in evaluating cloud storage and backup services for my law practice is that nearly all of them encrypt files for transmission, but don’t store them in encrypted form. Wuala and Tarsnap are exceptions to the general rule; you encrypt documents before you send them, and they reside in that encrypted form in the cloud. Wuala has iPhone, iPad, and Android apps.

  35. 35
    Tim in SF says:

    I wonder if you have to give the police the unlock code for your phone?

    You do not have to give your passcode to the police. Then again, the police don’t need your passcode to access your data. All phone data can be accessed by plugging the data cable into your phone and plugging the other end into a computer.

    This is a convenience feature. If you lose your password or upgrade your phone, the clerk in the phone shop can very simply transfer your data to a new phone with a cable and some software on a third device.

    For the cops, they just plug in the cable to your phone, suck all the data down to their computer, and snoop through it at their leisure. No broken phone, no missed password attempts, no cutesy security measures will work.

    If you want data security, get a blackberry.

  36. 36
    Rafer Janders says:

    @NCSteve:

    Um, just to inject a little more lawyerly contrarianism, I’d like to address this claim: “A reasonable argument can be made that going through the cell of someone who’s been arrested is the same as going through someone’s house, which would take a warrant (which would pretty much automatically be granted if the owner/occupant had been arrested and arraigned).”

    It is in fact in no way automatic for a warrant to be granted to search a suspect’s home once they’ve been arrested, unless the police can provide good reason that they need to find evidence related to the cause of the alleged crime and have good reason to suspect it is in the home.

    You can be arrested for lots of things, many of which would have no further need for search or investigation by the police. Say, for example, that you were arrested for disorderly conduct as part of an Occupy Wall Street march, or for getting in a drunken fistfight at a bar, or for drunk driving — would a judge then grant the police an open-ended warrant to search your apartment? Hardly likely, since there’s nothing for the police to search for and find that would have any relation to the cause of the arrest.

  37. 37
    Martin says:

    @burnspbesq: That does depend on the device. Thanks to CAs identify theft laws, if your mobile device supports device-wide data encryption and its stolen, you don’t need to notify. So FIPS 140 certified devices are starting to get more common, and that will almost certainly extend to the cloud as well. That’d effectively get you end-to-end encryption.

    I know the iPhone is currently under FIPS 140 testing for the iPhone and IPad. It already supports that for your backups of the device. I’m not sure what the state of iCloud would be for that, though. I think BB has had it for some time.

  38. 38
    Rafer Janders says:

    Wait, I consider myself very liberal and I don’t have a problem with that. If the person had a printed address book with them, that would be searchable. So why isn’t a phone?

    Because a smartphone isn’t like a written address book as much as it is like your personal computer. Think of it as a larger laptop. If you get arrested for, say, shoplifting while carrying your laptop, should the police, without first obtaining a warrant from a judge, be able to download and read the contents of that laptop, including every email you’ve ever written or received, every photo and video you’ve ever stored, every single document, paper, note and memo you’ve written, your financial and tax record spreadsheets, etc.? And once they do so, do you think they’d ever get rid of this, or would they just store it somewhere forever?

    Why should the mere fact of an arrest, for what may be a very minor matter, open the entirety of your life up to police scrutiny?

  39. 39
    Bill Arnold says:

    @Martin:

    I know the iPhone is currently under FIPS 140 testing for the iPhone and IPad.

    Link? and at what level of FIPS-140 (FIPS-140-2?)

  40. 40
    maya says:

    My, my. What do you people have stashed away on your Smartphone? Dealers names? The New Black Panther Party HQ secret tele number? Swiss bank account numbers? Your metro abortionist directory?

    I would suggest that you intersperse a few GOP reps, police dept higher ups, the mayor and Tea Party offals numbers too – just to fuque with their branes.

  41. 41
    Paul in KY says:

    @Tim in SF: How can you legally get them not to do that? Invoke 5th Amendment? Get your lawyer to a judge, pronto?

  42. 42
    neil says:

    The obligation to unlock your phone would seem to correspond closely to the obligation to unlock your car glovebox or trunk when arrested. Briefly, the cops can freely search your glovebox after arresting you in your car only if it’s unlocked; if it’s locked they need a warrant.

  43. 43
    soonergrunt says:

    @maya: I have a copy of the “Conservative Moral Scold with Bizarre Fetish Club” membership database.
    It’s cross-tabbed with the web addresses and shipping policies of several scuba shops.

  44. 44
    burnspbesq says:

    @Rafer Janders:

    Say, for example, that you were arrested for disorderly conduct as part of an Occupy Wall Street march, or for getting in a drunken fistfight at a bar, or for drunk driving—would a judge then grant the police an open-ended warrant to search your apartment?

    Well, that depends on the charges. If I’m an asshole prosecutor, and you get arrested at an Occupy Someplace demo, why wouldn’t I throw on a charge of conspiracy to disrupt the lawful functions of government (or something similar) which would create probable cause for looking at your emails and your cell phone logs?

  45. 45
    burnspbesq says:

    @maya:

    My, my. What do you people have stashed away on your Smartphone? Dealers names? The New Black Panther Party HQ secret tele number? Swiss bank account numbers? Your metro abortionist directory?

    On the off chance that that’s not snark …

    That’s the wrong question. Amazingly enough, there is a principle at stake here, and it’s a principle that a lot of people care about.

  46. 46
    Tim in SF says:

    @Paul in KY:

    @Tim in SF: How can you legally get them not to do that? Invoke 5th Amendment? Get your lawyer to a judge, pronto?

    At this time, in this country, it is simply not safe to carry sensitive data on your person. If you’ve used your smartphone to access email, the pigs will have access to your email. A friend of mine, Jacob Appelbaum, will not fly with a sim-card phone or any other device with storage. He has a laptop, but sends the encrypted hard drive in the mail ahead of his flight.

  47. 47
    Paul in KY says:

    @Tim in SF: Thanks for answering. My cellphone is a dinosaur & has none of that new fangled ‘smart’ stuff.

  48. 48
    Rafer Janders says:

    @burnspbesq:

    Which is precisely why a judge should then have to rule on the warrant to determine if it’s a reasonable request or not and whether there was any basis in the arrest record for that charge.

  49. 49
    Jenny says:

    Jerry Brown is getting conservative in his old age:

    Brown recently appointed Goodman Liu to the state Supreme Court.

    Geez, you guys are getting as reactionary as the morons at FDL.

  50. 50
    Bill Arnold says:

    @Tim in SF:

    He has a laptop, but sends the encrypted hard drive in the mail ahead of his flight.

    Does he have an issue with whole-drive encryption for his laptop? Just curious.

  51. 51
    Rafer Janders says:

    @Rafer Janders:

    Let me provide an example to make this a little more explicit for people:

    Suppose I’m arrested for drunk driving while driving on the highway. I’m taken to the police station and thrown in the cells for the night. At this point I’ve been arrested, but not convicted.

    Without getting any further warrant from the judge, and with no hope of finding anything specific relative to the charge of drunk driving, can the police then take my house keys, which were on the same chain as my car keys, go over to my house, let themselves in, and proceed to conduct a floor to ceiling search, including inventorying all my books, copying the pictures out of my photos albums, copying all the discs and videos I have, searching through all my closets, cabinets and cupboards, rifling through my home office, and booting up my desktop computer and copying all the files in there?

    How is that different from going through my smartphone? The physical presence in the home, yes. But isn’t the content of what they are searching substantively very much the same in my smartphone as compared to in my home? It’s all “papers and effects” in either case.

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