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United States Privacy The Courts

DOJ Complains About Getting a Warrant To Search Mobile Phones 178

Posted by samzenpus
from the give-us-an-easy-button-please dept.
An anonymous reader writes "The US government has entered its reply brief in the US vs. Wurie case and its argument in favor of warrantless searches of arrestees' cell phones contains some truly terrible suppositions. The government argues that impartial technological advancements somehow favor criminals. As it sees it, the path to the recovery of evidence should not be slowed by encryption or wiping or even the minimal effort needed to obtain a warrant. From the article: 'The government agrees that times are changing but counterintuitively argues that only law enforcement is being negatively affected by this. Every argument in favor of warrantless searches contains some sort of lamentation about how tech-savvy criminals will be able to cover up or destroy evidence contained on their phones before the police can crack open these new-fangled address books and copy everything down.'"
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DOJ Complains About Getting a Warrant To Search Mobile Phones

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  • by Anonymous Coward on Sunday April 27, 2014 @10:39AM (#46852971)

    It's almost like citizens should have their papers and effects safe from warrant-less searches. Crazy, I know.

    • You kids and your crazy, liberal ideas...

    • by frovingslosh (582462) on Sunday April 27, 2014 @12:00PM (#46853361)

      Look at the argument: "... some sort of lamentation about how tech-savvy criminals will be able to cover up or destroy evidence contained on their phones before the police can crack open these new-fangled address books and copy everything..."

      Clearly we must give the government any and every power that they want to snoop into our lives. After all, it's not like they could just put the phones that they steal in a simple shielded Faraday box while they wait for a warrant, and then do their snooping in a Faraday cage. No, it is far better to give every scumbag that wants to snoop into your life completely free unrestricted access than to even make them go through the sham of having a warrant first, after all, they have implied that somehow tech-savvy criminals might wipe their phones.

      • by BiIl_the_Engineer (3618863) on Sunday April 27, 2014 @12:13PM (#46853429)

        Typical. We're supposed to be the land of the free, and yet all these thugs care about is 'safety' (or, in reality, power), even when freedom should be considered more important in a land of truly free and brave people.

        • by Impy the Impiuos Imp (442658) on Sunday April 27, 2014 @06:43PM (#46855421) Journal

          Every historical democracy failed because they gave over "emergency powers" that were never given back.

          The Founding Fathers, for all their warts, were a hell of a lot wiser than current politicians. They foresaw a neverending battle of generation after generation ready to fall into this trap.

          • Democracies fail because at base they are simply two wolves and one sheep voting on what's for dinner. The founders fully understood this which is why they created a republic. Eventually the Democrats showed up and became a force for "democracy" which is de-facto what we now have. We now have a democratic polity that votes to keep the good times rollin which means that with more wolves than sheep eventually you run out of sheep. Then the cannibalism starts which is very near where we are now.

            I'm so glad tha

      • by mlts (1038732)

        The tech savvy criminals will then move to another notch of security.

        One example of this are self-contained apps like Divide that contain a rudimentary word processor, spreadsheet, and other tools, working on files in its space, all encrypted. Unlike Divide, the app would be decentralized, perhaps looking at incoming SMS messages for a kill signal, or even more useful, a keepalive signal. No signed text, deadman switch goes off, and the app would zero out its encryption keys.

        Of course, where the real croo

      • Look at the argument: "... some sort of lamentation about how tech-savvy criminals will be able to cover up or destroy evidence contained on their phones before the police can crack open these new-fangled address books and copy everything..."

        And this will always be true.

        Just as assaults on the second amendment are always justified in false claims that they're aimed at stopping criminals, but have no effect but disarming the law abiding, similarly criminals will always be able to destroy their own devices, but the generally law abiding will be the one's who failed to destroy the evidence of their "crimes".

        In both cases, it's the general law abiding citizen that is the real target, not the willful hardened criminal or terrorist, who won't be affe

      • by stiggle (649614)

        Apart from apps which could do things like "If I can't ping the phone/data network for x minutes, wipe the phone" which would be activated in a Faraday cage. You might have problems if you're often in remote locations without a signal, but most places these days have at least one mobile network coverage.

    • by Jane Q. Public (1010737) on Sunday April 27, 2014 @01:41PM (#46853825)
      Jack Vance probably said it best, in one of his novels. Here a ruler is speaking to the legislative body of government (e.g., congress, parliament):

      I urge you not to endorse this sinister measure. Humanity many times has had sad experience of superpowerful police forces...

      As soon as [the police] slip out from under the firm thumb of a suspicious local tribune, they become arbitrary, merciless, a law unto themselves. They think no more of justice, but only of establishing themselves as a privileged and envied elite. They mistake the attitude of natural caution and uncertainty of the civilian population as admiration and respect, and presently they start to swagger back and forth, jingling their weapons in megalomaniac euphoria.

      People thereupon become not masters, but servants. Such a police force becomes merely an aggregate of uniformed criminals, the more baneful in that their position is unchallenged and sanctioned by law. The police mentality cannot regard a human being in terms other than as an item or object to be processed as expeditiously as possible. Public convenience or dignity means nothing; police prerogatives assume the status of divine law. Submissiveness is demanded. If a police officer kills a civilian, it is a regrettable circumstance: the officer was possibly overzealous. If a civilian kills a police officer all hell breaks loose. The police foam at the mouth. All other business comes to a standstill until the perpetrator of this most dastardly act is found out. Inevitably, when apprehended, he is beaten or otherwise tortured for his intolerable presumption.

      The police complain that they cannot function efficiently, that criminals escape them. Better a hundred unchecked criminals than the despotism of one unbridled police force.

      Again I warn you, do not endorse this measure. If you do, I shall surely veto it."

      From The Star King, by Jack Vance

      This passage is notable for how demonstrably true it is. We have had exactly this problem with our local police, for many years, and we are only now beginning to get a handle on them.

  • Boo Fucking Hoo (Score:5, Insightful)

    by ShaunC (203807) on Sunday April 27, 2014 @10:43AM (#46852995)

    Do some real investigative work and make your freaking case. If the only evidence you have on someone is contained within their cell phone, perhaps they aren't guilty of anything they ought to be getting arrested for.

  • by sbrown7792 (2027476) on Sunday April 27, 2014 @10:45AM (#46853001)
    Digital or not, it's someone's property. Get over yourself and get a warrant to search/seize it.

    tech-savvy criminals will be able to cover up or destroy evidence contained on their phones before the police can crack [it] open

    And fire-savvy criminals will be able to cover up or destroy evidence contained in their house. What's the difference?

    • If the person really was "tech-savvy" then there would not be any implicating information on his/her phone.

      Unless you're talking about petty criminals who don't have the resources to use a secondary phone that is not tied to them.

      But that just means that the DOJ wants to kill the 4th Amendment to chase petty criminals. Fuck that!

      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, b

      • by CRCulver (715279)

        Unless you're talking about petty criminals who don't have the resources to use a secondary phone that is not tied to them.

        Already in many countries around the world one cannot buy a SIM card without presenting ID, which goes into some kind of government registry. If this is not already the case in the US, then I imagine it will be in future. Furthermore, didn't one of the Snowden revelations concern the NSA being able to easily track people across "burner phones"?

        • by sjames (1099) on Sunday April 27, 2014 @02:54PM (#46854227) Homepage

          Do you think the sort of person who would have evidence of a serious crime on their phone would hesitate for a moment to present a fake ID to the ever vigilant and eagle eyed clerk at the slurp and gulp? Or just steal one?

          • by stiggle (649614)

            Why, when you can buy a "tourist SIM" for the USA when in Europe. Bought with cash in a foreign country which provides me unlimited calls & over a Gig of data. Totally untraceable.

  • by Anonymous Coward on Sunday April 27, 2014 @10:46AM (#46853007)

    We're here to "help" you! Now get down on the floor before we tazer your ass. Papers please! No, no, no. This would be more like, "life history, all data relating to everything you do ever, please!"

    • by Anonymous Coward on Sunday April 27, 2014 @01:30PM (#46853771)

      Tazer? You must be a city boy. Out here in the county, the Sheriff's office gets the wrong address for a non-violent drug offender, activates the SWAT team, kicks down your door, shoots your dogs instantly whether or not they're a threat (read the policies out there; they did it to a mayor even), and then throws you on the floor and hog ties you and your wife in front of your kids.

      Then they figure out they have the wrong address.

      But you will still stay down, fool.. and you will comply.

      Or else.

      Preface: I live in the sticks on seven acres with over-zealous law enforcement (ironically many of whom I talk with at the target range) and the occasional meth head.

      And this kids, is why I'm probably on a list. I've got el-cheapo 360 degree camera coverage (including IR spectrum for night) hooked to a DVR which is also periodically (as in every ten minutes) backed up to an off-site location. I've also got motion sensor flood lights on every side of the house and garage. The floods and the DVR system are UPS backed. The locations of the cameras, while not being necessarily hidden, are not immediately obvious.

      My wife and I are both professionals with no kids, and generally like to be left the hell alone, so throughout the house (and basement, and garage) there are one of two types of weapons accessible: Smith and Wesson 686+ 7 shot .357 revolvers and Mossberg Persuaders in 12 gauge. Yes, we have more than one of each. It was an initial purchase that we made when we moved to the middle of nowhere, and the weapons are all hidden. If worse comes to worst and body armor is involved, in the gun safe is an AR-15 platform loaded up with the best 6.8mm SPC I can buy (unless they're wearing ceramic plates, I'll own em like a two dollar whore)

      We're both recreational shooters, have had considerable training (and indeed are going to Front Sight next year), and put rounds down range every month, if not every week as a hobby.

      I'm a software engineer who works from home (and former soldier), and she's a school teacher (and farm girl). We both lament that this mentality is needed, but here in Appalachia it's kind of like considering George Bush's presidency: no move too stupid.

      - signed: A Gun Totin' Working Class Agnostic Center-Left Democrat

      • You plan to shoot at law enforcement who try to arrest you in error? I don't see this working out well for you.
      • by namgge (777284)
        Surely the most likely outcome of your domestic security arrangements that you get shot by your wife?
      • Might want to replace "IR spectrum" with "near IR". That far IR stuff doesn't come cheap.
      • by rmdashrf (1338183)

        Ah yes, the land of the free. Sounds more like you're prepping for war.

        At some point I'd like to travel the US from coast to coast to see the beautiful country side. Apart from not feeling like being irradiated and/or violated at the border, posts like this make me postpone any travel to the US more or less permanently.

        • by chihowa (366380) *

          So was your original plan to invade his home on your coast-to-coast tour? Otherwise, how would what happens inside his home affect your vacation?

          I don't know what definition of "free" you're using, but in a "land of the free" people are free to prep for whatever they want without being forced to conform to your personal life choices...

          Or are you one of those people who wouldn't visit a country that allows gay marriage because you don't want to be forced into a gay marriage? You really need to get your irrat

  • Makes no sense (Score:4, Insightful)

    by PPH (736903) on Sunday April 27, 2014 @10:47AM (#46853013)

    lamentation about how tech-savvy criminals will be able to cover up or destroy evidence contained on their phones before the police can crack open these new-fangled address books and copy everything down.

    A warrant has nothing to do with this capability. If the perp sees you coming and wipes the phone*, the presence of a warrant has no effect on this. On the other hand, if you can secure the phone prior to the wipe, why can't you put it in an evidence bag, ask a judge for a warrant and then read it.

    *IANAL, but it is my understanding that the existence of a warrant has little bearing on a charge of destroying evidence.

    • If federal kill-switch legislation is passed, those mobile devices may require a function (by law) allowing them to be remotely wiped.
      • by Culture20 (968837)
        If Federal kill-switch legislation is passed, you can bet it will be amended such that you will need local, state, and federal approval before you can wipe your own phone.
  • ...we turn loose a process that works like the vascularization of a tumor. As soon as you let power flow to the center, and let it accumulate more power for the sake of power, abominations like this are going to keep happening. The NSA revelations were one step along this path. This story is another. Let's just declare Eric Holder il Duce and be done with it.

    • Nah. That already happened when the previous administration argued the Great Writ was not a right.

      Time to realize this trend has nothing to do with the person in power.

  • tl;dr (Score:5, Insightful)

    by ebno-10db (1459097) on Sunday April 27, 2014 @11:03AM (#46853097)

    tl;dr

    DoJ complains about 4th Amendment - wants it repealed.

  • By the end of the century they will be complaining because people are putting masking tape over legally required video to police camera's in every room of your house.

    These people have no sense. The federal government is amoral wanton killing machine with blood and guts of your fore-fathers lubing it's gears..
    And now those gears are getting slow - so throw some more 'lube' in there to keep it moving - "that kid there .. your son! Throw him in right there.."

    When you pay your taxes - you put a bullet into a sm

  • by Anonymous Coward

    From the article: 'The government agrees that times are changing but counterintuitively argues that only law enforcement is being negatively affected by this.

    Is not deliberately lying to a court considered perjury? Or are the courts deliberately looking the other way because it is law enforcement doing the lying? They know they are lying and I would be surprised if the courts didn't know they are lying.

    If they have enough evidence to arrest someone, they already have their phone in the evidence locker. It should not be an "undue burden" to actually get a warrant and make things legal. This is as much about police being lazy as it is about "tech savy criminals".

    • > Or are the courts deliberately looking the other way because it is law enforcement doing the lying? They know they are lying and I would be surprised if the courts didn't know they are lying.

      Historically, yes, the courts err on the side of law enforcement when reviewing testimony. The history of both the police and of the courts is filled with examples of this: it's an _inevitable_ part of the social and emotional bonds they both feel from being in the same business. It doesn't require planning or cons

  • The claim for a warrentless search is for imminent danger of a weapon like a knife or gun.
    Phones dont fall into this category, so should have court warrents.
  • by Karmashock (2415832) on Sunday April 27, 2014 @02:21PM (#46854049)

    ... It pays to protect yourself like a criminal.

    Lock your tech down so that when they come they have to say pretty please to get access.

    • Lock your tech down so that when they come they have to say pretty please to get access.

      Or they have to use a $5 wrench. Either one.

      http://xkcd.com/538/

  • Only in a police state is the job of a policeman easy. Do you want to live in a police state? I don't.

  • If this exact same logic had been applied during the time the Constitution was written, these people would have attempted to ban anyone from possessing or using fire in any place where any document that any government agency might one day want to read is created or stored, because "the criminals might burn the papers we think might contain evidence against them, therefore nobody should be allowed to have fire and paper at the same time because it would inconvenience us."

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