back to article Cell phone search needs no warrant, say Cal Supremes

California's high court said police don't need a warrant to read text messages stored on the cell phones of people taken into custody. Monday's 5-2 decision (PDF) relied on separate decisions from the 1970s by the US Supreme Court that upheld warrantless searches of cigarette packs and clothing taken from suspects after they …

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  1. Anonymous Coward
    FAIL

    Wow, this is some bad case law right here.

    The Fourth amendment clearly holds here. If the police need a warrant to *tap* your phone line, then it stands to reason that the exact same information contained in the exact same device would equally require a warrant, or probable cause, to be searched.

    Further, a modern cell phone quite literally contains one's "papers and effects" just as much as does a computer or filing cabinet. This is especially true here because the defendant was *in custody* having been found with illegal drugs on his person. A warrant would have been extremely easy to obtain with that kind of supporting evidence.

    1. Simon Neill

      I agree

      100%.

      However the fact that a warrant would be so easy to acquire kind of makes me think "meh" about the whole thing. Its not like they arrested him for speeding then found a text message and accused him of murder. I guess in principle though...

    2. Mark 65

      Pin lock

      Just keep it locked with a pin code and get a phone with some encryption - blackberry maybe? I'm guessing they'd need a warrant then.

    3. Colin Millar

      Invalid analogy to tapping

      The information from tapping is a conversation - unless you are recording the actual conversations somehow that information isn't available on your phone.

      Even if you were recording your conversations on your phone that conversation would become a document when it was recorded. Tapping applies to accessing the conversation in real time. It wouldn't even be analogous to keeping a pen register as they are also done in real time.

      The closest pre-smartphone situation would be more like a briefcase - although the sheer volume of people now carrying large amounts of personal info creates a completely different environment and suggests to me that policy makers should be looking at this as a completely new area rather than trying to stretch existing laws by analogy.

  2. NemoWho
    Big Brother

    OK, But does this mean...

    ...that along with my right to remain silent, I can say nothing about the phone's password, or other locking measures? "Gee, officer... I right forgot my Android unlock gesture!"

    Can of worms, opened for your pleasure.

    1. Tigra 07 Silver badge

      RE: NemoWho

      That tactic doesn't work with laptops and computers when you enter the country, it will lead to you being treated as a terrorist most likely and you risk more searches on your property and personal effects.

  3. Eddy Ito

    Interesting twist

    A smartphone is capable of accessing email which the sixth circuit found to be protected by the 4th Amendment. I can see that mobile encryption technology might be a good stock investment.

  4. Steve J. Rapaport
    Grenade

    Unless of course you have email on your phone

    http://www.theregister.co.uk/2010/12/15/email_fourth_amendment/ says email is not subject to warrantless search.

    Of course if you read your email on your mobile phone, it's public property. Of course.

    1. Dave 15 Silver badge

      secure email

      Secure email should be stored encrypted on your phone and only decrypted with an appropriate passkey or similar when being read.

  5. skeptical i
    Thumb Down

    This goes too far, methinks.

    It's not a cigarette pack, it's not clothes with who- knows- what crumpled in the pockets, a cell/smart phone (as stated above, a warrant is needed for a phoneline tap) can be the entirety of someone's documented life -- mail (can a cop open my mail without a warrant?), medical records (doctor- patient confidentiality?), banking/ financial info, and that's just a bit of what's available today to say nothing about what the next generations of technology will bring in.

    Perhaps some of the judges were thinking of circa- early- 1980s pagers?

  6. Neoc
    Pint

    Playing devil's advocate

    Correct me if I'm wrong in my understanding of the vagaries of US Law, but:

    If a suspect is arrested and is in possession of letters, tapes and/or a diary, then the police may look into all those items the suspect had in his/her possession at the time of arrest. This only applies to first-level evidence - they may *not*, for example, use a set of keys found on the suspect to enter his/her domicile to look for extra evidence (although they technically may use to keys to show that the suspect had access to premises X, which is another kettle of fish altogether).

    Extrapolating this to a PDA/mobile/laptop - based on the above, I would reasonably conclude that any electronic information *physically on the suspect* at the time of the arrest is fair game. So any SMS or phone number stored in the PDA/phone or any emails *stored locally on the electronic device* would be fair game. On the other hand, using the laptop/PDA to access email stored on a server would *not* be admissible (using the "key" analogy).

    This is, of course, purely an intellectual exercise based on my understanding of existing USA rules of evidence. I may have it wrong. Bottom line, though - if you don't want people pawing through your correspondence, encode it and store it on a server, *not* on your device.

    1. Edwin

      Luddite judiciary

      Let's take this a step further: if I have push mail on and my smartphone receives an email (or short message for that matter) while in possession of police, is that fair game? I didn't have that message on me when I was arrested.

      Another question: if my phone is locked, are they allowed to hack it? Presumably no, since they did not have access to the information on the device when I was arrested, but it's a slippery slope in any case.

      OTOH: any perp that doesn't use an autolocking phone is probably dumb enough to have made lots of other mistakes as well, so it may not make a difference in terms of conviction rates...

    2. M man

      errr

      so what happens in my case when opinging the client causes it access the server.

      what email is local and what email is retrieved by the officer as as side effect of checking for local mail???

      kettle...fish

  7. JaitcH
    WTF?

    Yet another reason for personal encryption products?

    Obviously personal encryption products are the only answer to circumvent this CA ruling as well as the CALEA compliance requirements that are mandatory in the U,S. AND several other countries.

    'Locking' cell/hand phones is a 'nothing' for The Plod as cell/hand phone manufacturers provide the tools/information to unlock telephones, as well as reading SIM content.

    Pagers have certain advantages: location can not be determined by network; many pagers have minimal 'cracking' features and clear messages after reading.

    Message vocalisation services, where SMS messages are intercepted and converted to voice messages also make a Plod's life harder

  8. James Woods

    can we still blame george bush

    The left took a fit with warrantless wiretapping so wheres the left now?

    The left ran california under bush, the left runs the white house now.

    How's all that privacy? Looks good from here.

    Submit to the state.

    1. Alfred

      The left? Get some perspective

      The U.S. has two major political parties; the far right one, and the really far right one.

      1. Tom 13

        Spoken like a true

        commie. The sorts of people who mistake National Socialists for the far right.

    2. Tom 13

      Nope, this one came from the Cali court, aka the farthest left court

      in the country.

    3. Andy Hards

      I thought Arnie was a Republican not a Dem

      NO?

  9. Graham Wilson
    Grenade

    It's time for instant erase buttons.

    Well if that doesn't spur the development of instant-erase buttons on mobile/cell phones then nothing will.

    Mind you, criminals aren't very smart. Why on earth would you ever use any public communications network for criminal activity when everybody knows The Establishment--Scotland Yard, FBI, security services et al--listens in with electronic ears the size of Jodrell Bank?

    1. raivn
      Stop

      criminals aren't very smart

      because you are only a 'criminal' after you have been caught and convicted.

      1. Dave 15 Silver badge

        how old fashioned

        In the UK you are a criminal unless you can prove yourself more innocent than Christ.

        If you want to work with kids you need CRB checks and the last government even wanted to include tittle tattle from neighbours and vague hunches by odd ball investigators...

        If the establishment decides you might be a terrorist they can lock you up for months then place you under a control order with no proof required at all

        If they can't get away with that they'll shoot you as you sit down in a train, then say 'oops sorry, but you're still dead mate'

        You can even be fined very substantial amounts without the dvla/goverment/court even bothering to tell you thats what they are doing - first you know is when the bailiffs arrive - strangely enough they can make contact!

        No, the governments in US and Europe are more out of control than Hitler, Stalin, Mugabwe or even the Chinese... All due to the laziness and complacency of the population - how many people think that 'if you have nothing to hide you have nothing to fear'...... how wrong they are, in 1930 Jews in Germany had nothing to hide.....

        1. DavCrav Silver badge
          FAIL

          Perspective required

          "No, the governments in US and Europe are more out of control than Hitler, Stalin, Mugabwe or even the Chinese... All due to the laziness and complacency of the population - how many people think that 'if you have nothing to hide you have nothing to fear'...... how wrong they are, in 1930 Jews in Germany had nothing to hide....."

          Seriously? You are saying that shooting a bloke on the subway is "more out of control" than the Holocaust? I'm not saying things are great, but saying we are worse off here than Russia in the Stalinist purges is a joke.

        2. david wilson

          @Dave 15

          >>"If they can't get away with that they'll shoot you as you sit down in a train, then say 'oops sorry, but you're still dead mate'"

          Right, so in your paranoid fantasies, they didn't shoot an innocent man as a result of stunning incompetence (seemingly not realising that the consequence of their plans could easily be a death sentence for a misidentified person), but they actually knew exactly who he was, thought he was guilty of something (despite a complete lack of evidence), and decided to shoot him anyway.

          And doing that once means that it's now standard policy.

          >>"how many people think that 'if you have nothing to hide you have nothing to fear'..."

          In the case we're actually discussing, innocent people who don't carry incriminating information around with them seem to have substantially less to fear than criminals who do.

          As for your Hitler/Stalin nonsense, either you know nothing of the world and history, or your medications need tweaking.

        3. Graham Wilson
          Unhappy

          @Dave 15 - Reckon you're close to the mark!

          "No, the governments in US and Europe are more out of control than Hitler, Stalin, Mugabwe or even the Chinese... All due to the laziness and complacency of the population..."

          Close to the mark methinks (a check of my past posts on the ID card etc. would reveal very similar strong comments).

          What's particularly frightening is that whilst modern spin and propaganda that emanates from the leaders of our so-called democracies doesn't have stridency of that from Goebbels, it's probably more effective.

          In the wake of WWII, it's remarkable how complacent, disinterested, lemming-like and accepting of authority Western populations have become. It's as if nothing has been learned from WWII--as if the tragic sacrifice of 50M+ people seems to have been in vain.

          Perhaps it's why war seemingly comes in cycles, complacency and laziness inevitably leading to a new innings.

          To me, that innings already seems overdue.

    2. rjmx
      Coat

      Pshaw ...

      In the unlikely event that those turkeys have actually heard of Jodrell Bank, they're probably planning to rob it.

  10. Neal 5

    It'd be a reet bugger if,

    you'd just mugged a dealer of his 'phone and supplies.

  11. Bernard M. Orwell

    Warrantless Search

    Surely if the suspect has been 'taken into custody' or has been arrested then the search does not require a warrant?

    If people were being told to give up their phones content on a simple 'stop & search' then I'd be up in arms, but if they've been arrested then 'probable cause' already exists in which case I'd say the search is reasonable.

  12. Tigra 07 Silver badge
    Grenade

    No tit required, he lost the General Election

    It could also be a huge invasion of privacy and lead to massive payouts in cases of wrongful arrests aswell.

    Good job Labour isn't in power, they would attempt something like this...

    1. david wilson

      @Tigra 07

      >>"Good job Labour isn't in power, they would attempt something like this..."

      So this is something the UK police couldn't do without a warrant?

      1. Tigra 07 Silver badge
        Thumb Down

        RE: David

        It's no secret that Labour bent over backwards for the Americans when in power and had an addiction to databases is it David?

        Labour passed all kinds of laws to screw us over just because America requested, especially in the airport grope area, that's just unacceptable.

        1. david wilson

          @Tigra 07

          This seems to be nothing to do with databases, but with whether the UK police do or don't have the right to look at the phones of people who've been arrested.

          I'm genuinely wondering what the situation is in the UK now, and what the past history has been.

  13. Mike Cardwell

    TextSecure

    People with Android phones. Use TextSecure from Whisper Systems. It's a drop in replacement for the standard SMS app, and works almost exactly the same. It uses public key encryption so your SMS are automatically encrypted, and to view them you have to enter the password for your private key. It also uses public key encryption to encrypt messages over the air between two TextSecure users.

    Of course, the police can always go to the network providers who will have a log of all SMS transmitted, but messages encrypted over the air are safe from content inspection.

    And of course, if you're in the UK, the police can simply throw you in jail for not handing over the password :( US users are safe from that shit though.

    1. Mike Cardwell

      PGP Email

      Also, to use PGP on Android install APG (Android Privacy Guard). Then to use PGP with email install K-9. It's much better than the standard email client anyway, but it also plugs in to APG.

  14. Gray
    Troll

    We're screwed

    If this goes to the U.S. Supremes, we're totally screwed. A 5-4 decision will result in all electronic devices being subject to warrantless seizure and searches, just as now exists for anyone crossing into the U.S. over the border. They'll use the justification that total portability represents a gross threat from terrorism, drug trafficking, and child pornography. Just another small sacrifice of freedoms to serve the greater security ...

  15. Gilbert Wham

    Never mind all that...

    HOW MUCH?! Bloody hell.

  16. Anonymous Coward
    Paris Hilton

    azsh a pee-esh

    Try:

    replace the word "freedom" with phrase "rights and responsibilities"

    So for example

    Freedom of information

    becomes

    rights and responsibilities of information.

    The phrase also seems to add local context in sense that one's appreciation of rights & responsibilities in onw part of the world might differ in another.

    Besides, Freedom seems such an over used and under defined word for sure.

  17. Anonymous Coward
    IT Angle

    Butt shoorli hoshipher?

    Were the phone password protected then that would/should make a difference?

  18. Anonymous Coward
    Alert

    Daylight robbery!

    You're missing the real crime here: 6 pills for $80!!

    1. lpopman
      Happy

      titular gurning

      I was just going to say exactly the same thing ;)

      Also, around my way, you could probably get 10 times the quantity for that price. Including delivery.

      Smiley, as I remember the 90's pills fondly :)

  19. Stevie Silver badge

    Bah!

    I wish 'em luck if they ever seize my phone.

    "Pick up spuds for tea"

    "Pick up kid on way home"

    "Thx 4 not calling 2 say u'd B L8. Ur dinner is in the cat".

  20. Alan Firminger

    2 issues

    Draconian it may seem : but I am sure that a UK court would reach the same conclusion for the same obvious reason.

    Don't get picked up for stepping on the cracks in the pavement.

  21. Kevin Fields

    It'll get overturned on the federal level

    Four federal courts in the last six months have ruled that you need a search warrant in order to access GPS, cell phone and e-mail information. This will get appealed to a federal level and be overturned very quickly.

  22. ps2os2
    Jobs Horns

    Phones searchable

    This could be an idea option for the phone market and anyone else. An Clear key wipes out everything in a microsec or 2.

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